r 

EL 

WO 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


THE  PRINCIPLES 


OF  THE  LAW  OP 


PUBLIC  CORPORATIONS 


BY 

CHARLES  B.  ELLIOTT,  PH.  D.,  LL.  D. 

nt 

JUDGE  OF  THE  DISTRICT  COURT  OF  MINNESOTA 


REVISED,  ENLARGED  AND  PARTLY  REWRITTEN 

BY 

JOHN  E.  MACY 

OF  THE  FACULTY  OF  BOSTON  UNIVERSITY 
LAW  SCHOOL 


CHICAGO 

CALLAGHAN  AND  COMPANY 
1910. 


COPYRIGHT,  1898 

BY 
CHAS.  B.  ELLIOTT. 

COPYRIGHT,  1910 

BY 

CALLAGHAN  &  COMPANY. 

T 


: 


TO  THE 

HON.  ROBERT  G.  EVANS, 

OF  MINNESOTA, 

THIS  VOLUME  IS  CORDIALLY  AND  RESPECTFULLY 
DEDICATED. 


7294,37 


PREFACE  TO  REVISED  EDITION 


In  preparing  this  edition,  the  main  endeavor  has  been  to 
make  a  complete  revision  and  rearrangement  of  the  book,  and 
such  substitutions  and  additions  as  appeared  likely  to  improve 
it  for  the  use  of  students.  In  a  field  of  law  in  which  the  views 
of  judges  vary  so  much,  it  is  natural  that  writers  should  differ  as 
to  the  truth  of  generalizations  and  the  correctness  of  statements ; 
but  doubtless  many  of  the  changes  in  the  book  are  such  as  the 
author  himself  would  have  made,  had  the  pressure  of  profes- 
sional labors  left  him  free  to  undertake  the  revision. 

Some  parts  of  the  text  have  been  entirely  replaced  by  new 
chapters  and  sections,  treating  the  matter  differently.  Among 
these  are  the  chapters  on  The  Creation  of  Corporations  and 
Streets  and  Highways,  which  are  entirely  new;  and  those  on 
Power  to  Contract  and  Own  Property,  and  Delegation  and 
Restriction  of  Power  and  Alienation  of  Property,  in  each  of 
which  some  of  the  original  text  has  been  utilized.  The  note 
after  section  11  on  the  Forms  of  City  Government,  and  among 
others  sections  47,  69,  70,  89,  93,  176  to  179,  183,  195  to  200, 
254,  255,  are  new.  For  various  paragraphs  and  parts  of  para- 
graphs, the  reviser  should  also  assume  responsibility,  but  they 
cannot  well  be  specified. 

In  revising  the  text,  many  alterations  have  been  made  by 
changes  in  expression ;  and  sentences  and  clauses  have  been  omit- 
ted or  added  as  seemed  necessary  to  secure  greater  accuracy  and 
smoothness  or  clearer  elucidation.  The  notes  have  been  enlarged, 
old  citations  verified,  and  references  to  the  Reporter  System 
inserted. 

The  order  of  arrangement  has  been  radically  changed,  to  cor- 
respond to  the  order  which  has  seemed  most  desirable  in  view  of 
the  experience  of  some  who  are  engaged  in  presenting  the  sub- 
ject at  law  schools. 

The  kindness  is  here  acknowledged  of  Robert  D.  Petty,  Esq., 
of  New  York,  in  sending  his  notes  made  while  using  the  book  in 
connection  with  his  lectures  at  New  York  Law  School. 

JOHN  E.  MACY. 

BOSTON,  Jan.  1910. 

v 


PREFACE  TO  FIRST  EDITION. 


This  book  is  the  result  of  an  attempt  to  state  the  law  of  Pub- 
lic Corporations  in  a  manner  suited  to  the  needs  of  students. 
The  plan  made  it  necessary  to  pass  rapidly  over  questions  which 
are  no  longer  controverted,  and  to  treat  very  briefly  matters 
which  more  properly  belong  to  other  titles  of  the  law.  A  writer 
on  this  subject  must  necessarily  be  under  unmeasured  obligation 
to  the  Hon.  John  F.  Dillon.  I  gladly  acknowledge  that 
obligation. 

The  authorities  have  been  verified  and  the  table  of  cases  pre- 
pared by  W.  E.  Hewett,  Esq.,  of  the  Minneapolis  bar. 

MINNEAPOLIS,  April,  1898. 


VI 


TABLE  OF  CONTENTS 


[REFERENCES  ARE  TO  SECTIONS.] 


CHAPTER  I. 

DEFINITION,  CLASSIFICATION  AND  HISTORY. 

In  general   §  l 

Different  kinds  of  corporations 2 

Classification  of  public  corporations • 3 

School  districts    4 

Distribution  of  powers  and  duties 5 

The  county — Its  organization  and  functions 6 

The  township   7 

The  town  meeting  8 

The  township  elsewhere  than  in  New  England 9 

The  English  municipality  10 

The  American  municipality  11 


CHAPTER  II. 

THE  CREATION  OF  PUBLIC  CORPORATIONS. 

Source  of  creation   12 

Power  of  Congress  to  create 13 

Power  of  territorial  legislatures  14 

Creation  by  implication 15 

Invalid  organization  :  De  facto  corporations 16 

Presumption  of  creation. — Prescription   17 

Creation  by  recognition    18 

Name  and  boundaries 19 

Authority  of  legislature  to  invest  with  power 20 

Compulsory   incorporation    21 

Compulsory  changes  in  charters   22 

Form  of  legislation 23 

Form  of  proceedings  under  general  laws 24 

vii 


TABLE  OF  CONTENTS. 

[REFERENCES  ARE  TO  SECTIONS.] 
CHAPTER  III. 

GENERAL  SCOPE  OF  POWER. 

The  general  principle §  25 

Comments  upon  the  rule   26 

Rules  of  construction   27 

Usage    28 

Manner  of  granting  powers   29 

General-welfare  clause    30 

Exercise  of  power  beyond  boundaries 31 

Statutory  requirements  as  to  form 32 

Constitutional  limitations  apply 33 


CHAPTER  IV. 

POWER  TO  CONTRACT  AND  OWN  PROPERTY. 

Power  to  incur  debts  34 

Power  to  borrow  money  35 

Power  to  make  ordinary  contracts 36 

Letting  contracts  to  lowest  bidder 37 

Remedy  of  bidder    38 

Ratification  of  invalid  contracts 39 

Paying  money  when  not  legally  liable 40 

Indemnifying  officers   41 

Compromise  and  arbitration   42 

Power  to  own  property  43 

Power  to  acquire  by  gift :  trusts 44 

Different  classes  of  municipal  property 45 


CHAPTER  V. 

POLICE  POWER. 

Nature  and  scope  of  the  police  power '  46 

Scope  of  power  of  municipality 47 

Regulation  of  occupations  and  amusements 48 

The  preservation  of  health  49 

Nuisances    50 

Regulation  of  wharves   51 

Licenses    52 

Markets    53 

Prevention  of  fires  54 

Care  of  indigent  and  infirm  55 


TABLE  OF  CONTENTS.  IX 

[REFERENCES  ARE  TO  SECTIONS.] 
CHAPTER  VI. 

JUDICIAL  POWERS. 

Power  to  establish  courts §  56 

Jurisdiction    56a 

Qualifications  of  judges  and  jurors  57 

Procedure — Jury  trial   58 

CHAPTER  VII. 
STREETS  AND  HIGHWAYS. 

Nature  of  a  public  way 59 

How  established   GO 

Relation  of  corporation  to  streets 61 

Rights  remaining  in  the  fee-owner 62 

Rights  of  abutters  as  such  63 

Uses  not  within  the  public  easement 64 

Power  of  municipal  corporation  to  grant  franchises 65 

Police  ordinances  regulating  use  of  streets 66 

Vacation :  power  of  municipal  authorities 67 

Vacation :  rights  of  abutters  68 

CHAPTER  VIII. 

MUNICIPAL   IMPROVEMENTS   AND    SERVICES. 

Measures  of  state  government   69 

Measures  of  local  concern   70 

Contracts  for  water  and  light 71 

Power  to  maintain  water-works  and  light-plants 72 

Wharves  and  ferries   73 

Powers  of  school  boards   74 

CHAPTER  IX. 

DELEGATION  AND  RESTRICTION  OF  POWER  AND  ALIENATION 

OF  PROPERTY. 

Delegation  of  discretion  75 

Illustrations    7(1 

Restricting  future  exercise  of  discretion 77 

By  contract  for  term  of  years 78 

By  exclusive  privileges   79 

Power  to  sell  and  convey  property 80 

Power  to  let  for  income 81 

Alienation  by  law :  Creditors   82 


X  TABLE  OP  CONTENTS. 

[REFERENCES  ARE  TO  SECTIONS.] 
CHAPTER  X. 

THE  POWER  OF  EMINENT  DOMAIN. 

Definition  §  83 

May  be  delegated  84 

What  may  be  taken  85 

Must  be  for  public  use 86 

Property  already  appropriated  to  public  use 87 

Meaning  of  "property"    88 

Necessity  for  taking   89 

What  constitutes  a  taking  90 

The  proceedings    91 

The   tribunal    92 

Notice  and  hearing  93 

The   compensation    94 

Consequential    injuries    95 

Benefits    96 

Manner  of  payment   97 

Right  of  appeal  98 


CHAPTER.  XI. 

TAXATION  AND   SPECIAL  ASSESSMENTS. 

Power  of  taxation  99 

Nature  of  special  assessments 100 

Their  constitutionality 101 

Purposes  for  which  local  assessments  may  be  levied 102 

Method  of  apportionment  103 

By  benefits   104 

The  frontage  rule  105 

Property  exempt  from  taxation  106 

Collection  of  assessments  107 

Personal  liability  for  assessments  108 


CHAPTER  XII. 

OF  THE  MANNER  OF  EXERCISING  CORPORATE  POWER. 

Charter  provisions    109 

Meaning  of   terms    110 

Statutory   directions    HI 

Procedure  in  the  enactment  of  ordinances 112 

Where  no  mode  is  prescribed 113 

Illustrations    .  114 


TABLE   OF    CONTENTS.  Zli 

[REFERENCES  ARE  TO  SECTIONS.] 
CHAPTER  XIII. 

OF  THE  FORM  AND  ENACTMENT  OF  ORDINANCES. 

The  form §  115 

The  title 110 

The  enacting  clause  117 

The  penalty    118 

Need  not  recite  authority  119 

Council    meeting    120 

Introduction — Notice    121 

Readings    122 

Suspension  of  the  rules   123 

Presumption  as  to  regularity 124 

Signing    125 

Approval    126 

Approval — Illustrations    127 

The  executive  veto   128 

Necessity  for  publication   129 

Publication,  when  directory  130 

Ultra  vires  acts  of  officials 131 

Manner  of  publication  132 

Designation  of  paper  133 

Location  of  paper — "Printed  and  published  in  the  city" 134 

Manner  and  sufficiency   135 

Distinction  between  publication  and  notice 136 

Time  and  period  137 

Proof  of  publication 138 


CHAPTER  XIV. 
THE  VALIDITY  OF  ORDINANCES. 

General   statement    139 

Ordinances  valid  in  part 140 

Nature  of  an  ordinance 141 

Injunctions — Invalid  ordinances    142 

I.  GENERAL  PRINCIPLES  GOVERNING  VALIDITY. 

Must  conform  to  charter 143 

Must  be  constitutional    144 

Must  conform  to  law  145 

Must  not  contravene  common  right 146 

Must  be  general  and  impartial 147 

Must  not  be  oppressive  148 

Must  be  reasonable   149 

Reasonableness  a  question  for  the  court 150 

Presumption  of  reasonableness  151 


XU  TABLE  OF  CONTENTS. 

[REFERENCES  ARE  TO  SECTIONS.] 

II.  ILLUSTRATIONS  OF  VALID  AND  INVALID  ORDINANCES. 

Laying  pipes  in  streets §  152 

Location  and  speed  of  vehicles 153 

Handling  of  trains    154 

Regulation  of  street  railways   155 

Parades,  music  and  speaking  in  public  places 156 

Licenses    157 

Discrimination  against  non-residents   158 

Regulation  of  markets 159 

Regulation  of  liquor  traffic 160 

Fire   regulations    161 

Quarantine  regulations — Second-hand  clothing  162 

Hotel  runners  and  hackmen 163 

Miscellaneous  decisions  164 

III.  ORDINANCES  WHICH  PROHIBIT  ACTS  WITHOUT  THE  CONSENT  OF  CER- 
TAIN OFFICIALS. 

General   statement    165 

Cases  sustaining  such  ordinances   166 

Delegation  of  authority   167 

Nature  of  prohibited  acts   168 

Uniform  conditions — Unjust  discrimination   169 

CHAPTER  XV. 
GOVERNING  BODIES,  OFFICERS  AND  AGENTS. 

Distribution  of  powers   170 

The  corporate  meeting 171 

Notice  of  corporate  meetings   172 

The  common  council  173 

Place  of  meeting    174 

Majority  and  quorum   175 

Motives  of  members  176 

Interest  of  members 177 

Control  by  the  courts   178 

Who  are  officers   179 

Election  and  appointment  180 

Qualifications    181 

Conditions  precedent  to  entering  upon  an  office 182 

Fiduciary  position  of  public  officers 183 

Incompatible  offices    184 

Illustrations    185 

Officers  de  facto   186 

Officers  de  facto — Continued  187 

Compensation    188 

Compensation — De  facto  officers   189 

Increase  of  salary — Misdemeanor   190 

Compensation  of  employees — Attorneys  191 


TABLE   OF   CONTENTS.  xiii 

[REFERENCES  ARE  TO  SECTIONS.] 

The  mayor  §  192 

Holding  over  after  expiration  of  term 193 

Resignation    194 

Removal ;  elective  officers    195 

Removal ;  appointive  officers ;  indefinite  term 196 

Removal ;  appointive  officers ;  fixed  term 197 

Removal ;  right  to  hearing   198 

Removal ;  judicial  review    199 

Manner  of  trying  title  to  office 200 

CHAPTER  XVI. 

CONTRACT  LIABILITIES. 

I.  PUBLIC  OFFICERS. 

Liability  for  loss  of  public  funds 201 

Personal  liability  on  contracts  202 

II.  PUBLIC  CORPORATIONS. 

General  liability   203 

Presentation  and  demand  204 

Doctrine  of  ultra  vires 205 

Estoppel — Contract  executed  by  one  party 206 

Contracts  within  scope  of  general  powers 207 

Contract  in  part  ultra  vires 208 

Liability  on  implied  contract 209 

Illustrations    210 

Right  to  recover  back  illegal  taxes  211 

Payment  must  be  compulsory  212 

Voluntary  payment    213 

CHAPTER  XVII. 

MUNICIPAL  SECURITIES. 

I.  WARRANTS  AND  ORDERS. 

Power  to  issue 214 

Form    215 

Negotiability    216 

Effect  of  acceptance  217 

Presentment  and  demand  218 

Payable  out  of  a  particular  fund 219 

Rights  of  indorsee   220 

Defenses    221 

II.  MUNICIPAL  BONDS. 

Power  of  public  gwtm-corporations  222 

Power  of  municipal  corporations  223 

Ratification  of  illegal  bonds  224 


TABLE   OF   CONTENTS. 

[REFERENCES  ARE  TO  SECTIONS.] 

Liability  for  money  received §  225 

Right  to  restrain  issue  of  illegal  bonds 226 

a.   PURPOSES   FOR    WHICH    BONDS    MAY   BE   ISSUED. 

Must  be  a  public  purpose 227 

What  are  public  purposes 228 

Railways    229 

Private  purposes   230 

How  determined   231 

6.    CONDITIONS    PRECEDENT    TO    LEGAL    ISSUE. 

In  general   232 

Consent  of  the  people  233 

Manner  of  obtaining  consent 234 

Majority  of  voters   • 235 

Location  and  completion  of  roads 236 

C.   ESTOPPEL. 

When  estoppel  arises  237 

Authority  of  officers  238 

Estoppel  by  conduct — Illustrations   239 

By  judgment    240 

d.    BIGHTS    OF    BON  A    FIDE    HOLDERS. 

Who  are  such 241 

Defenses  available  against  a  bona  fide  holder 242 

Recitals  in  bonds   243 

Effect  of  recitals — Continued 244 

Authority  of  officials  to  make  recitals 245 

Recital  that  bonds  have  been  issued  "in  conformity  to  law" 246 

Excessive  issues    247 

CHAPTER  XVIII. 

LIMITATIONS  ON  INDEBTEDNESS. 

Power  to  incur  debts  248 

The  meaning  of  indebtedness   249 

Contingent  obligations    250 

Contracts  requiring  annual  payments 251 

Anticipation  of  revenues    252 

CHAPTER  XIX. 
LEGISLATIVE  CONTROL  OVER  PUBLIC  CORPORATIONS. 

Legislative  power  over  charters  253 

Right  to  local  self-government  254 

Legislative  power  over  property   255 

Roads  and  streets    256 


TABLE  OF  CONTENTS.  XV 

[REFERENCES  ARE  TO  SECTIONS.] 

Rights  in  the  nature  of  franchises §  257 

Disposition  of  property  upon  dissolution 258 

I.  POWEB  OVEB  OFFICES  AND  OFFICERS. 

Various  kinds  of  officers  259 

Police  officials   260 

Their  appointment  and  payment 261 

Park  commissioners   262 

Other  public  works  263 

Mayor    264 

II.  FUNDS  AND  REVENUES. 

Power  over  revenue  of  public  corporations 265 

Revenues  from  rights  in  the  nature  of  franchises 266 

III.  LEGISLATIVE  CONTROL  OVER  CONTRACTS. 

Rights  of  parties  contracting  with  corporation 267 

Illustrations    268 

Rights  in  a  sinking  fund  269 

Limitation  on  indebtedness   270 

Power  to  deprive  a  municipality  of  contract  rights 271 

IV.  THE  POWER  TO  IMPOSE  OBLIGATIONS. 

Nature  of  the  debt  272 

Compulsory  taxation    273 

Construction  of  highways    274 

Support  of  public  schools 275 

Local  corporate  purposes   276 

Subscription  for  stock  277 

Compulsory  payment  of  claims  278 

V.  THE  TERRITORY  AND  BOUNDARIES. 

The  general  rule  279 

What  territory  may  be  annexed 280 

Illustrations 281 

Property  and  debts  upon  division  of  territory 282 

CHAPTER  XX. 

CONSTITUTIONAL    LIMITATIONS    UPON   LEGISLATIVE    POWER 
OVER  PUBLIC  CORPORATIONS. 

In  general   283 

General  laws    284 

The  requirement  of  a  "uniform  system  of  government" 285 

Illustrations    286 

The  requirement  that  "laws  of  a  general  nature  shall  have  uniform 

operation  throughout  the  state" 287 

Illustrations    288 

Local-option  laws   289 

Classification    290 

Class  containing  but  one  member 291 


TABLE  OP   CONTENTS. 

[REFERENCES  ARE  TO  SECTIONS.] 

Geographical  conditions  §  292 

Population    293 

Illustrations    294 

Possible  accession  to  a  class 295 

Legislation  regulating  the  "business,"   "affairs"   and  "internal  af- 
fairs" of  corporations   290 

The  prohibition  of  special  legislation  "where  a  general  law  can  be 

made  applicable"   297 

Amendment  or  repeal  of  existing  special  charters 298 

CHAPTER  XXI. 

LIABILITIES  IN  TORT. 
I.  PUBLIC  OFFICEBS. 

Liability  in  general  299 

Liability  of  officers  acting  judicially 300 

Liability  of  recorder  of  deeds  301 

Liability  of  sheriff  302 

Liability  of  highway  officers 303 

Liability  of  various  officers  304 

II.  PUBLIC  CORPOEATIONS. 

Nature  of  corporation  305 

Nature  of  duty 306 

Discretionary   powers    307 

Imposed  and  assumed  duties 308 

Liability  for  acts  of  officers  and  employes 309 

Torts  in  ultra  vires  undertakings  310 

Ratification  of  ultra  vires  acts  311 

Increase  of  liability  by  contract 312 

General  rules  313 

a.  SOLELY  GOVEBN  MENTAL  DUTIES. 

Definition    314 

Neglect  to  enact  or  enforce  laws 315 

Suspension  of  ordinances   316 

Liability  for  acts  of  mob  317 

Acts  of  police  officers   318 

Prevention  of  fires   319 

Destruction  of  property  to  prevent  spread  of  fire 320 

Acts  of  firemen   321 

Acts  of  board  of  health — Care  of  hospital 322 

Care  of  criminals   323 

Care  of  the  indigent 324 

Care  of  school  buildings  325 

6.  SOLELY  COBPOBATE  DUTIES. 

Rule  of  liability  for  negligence 326 

As  owner  of  property  used  for  purposes  of  a  private  nature 327 


TABLE  OF  CONTENTS.  XV11 

[REFERENCES  ARE  TO  SECTIONS.] 

Illustrations— Wharves  §  328 

Private  business  enterprises — Gas  and  water 329 

CHAPTER  XXII. 

MUNICIPAL  DUTIES  RELATING  TO  GOVERNMENTAL  AFFAIRS. 

General   statement 330 

Common-law  duty  to  repair  highways  331 

Conflicting  rules — Chartered  municipalities   332 

Liability  of  counties  and  towns 333 

Extent  of  duty  to  care  for  highways  334 

Lighting  the  streets  335 

Necessary    obstructions    336 

Illustrations    337 

Lack  of  funds  as  a  defense 338 

Liability  for  acts  of  licensees  839 

Care  of  sidewalks   340 

Obstruction  on  sidewalks    341 

Ice  and  snow  on  highways 342 

Care  of  bridges  343 

Notice   344 

CHAPTER  XXIII. 
THE  CONSTRUCTION  AND  CARE  OF  PUBLIC  WORKS. 

Care  of  public  property 345 

Surface  waters    346 

Drainage  and  sewers  347 

The  plan  of  a  public  work 348 

Direct  injury  to  property 349 

The  construction  and  care  of  sewers 350 

Consequential  damages  351 

CHAPTER  XXIV. 

ACTIONS  AND  PROCEEDINGS. 

The  capacity  to  sue  and  be  sued 352 

Notice  of  claim 353 

Mandamus    354 

Mandamus  to  enforce  duties  toward  creditors 355 

Further  illustrations  of  the  use  of  mandamus 356 

Quo   warranto    357 

Remedy  in  equity  358 

Certiorari    359 

Levy  of  execution  on  corporate  property 360 

Liability  to  garnishment 361 


TABLE  OF  CASES  CITED 


[REFERENCES  ARE  TO  PAGES. 


Aaron  v.  Broils    (64  Tex.  316,  53 

Am.  St.  764),  309. 
Abbott  v.  Kiinball    (19  Vt.  551),  47 

Am.  Dec.  708),  307. 
Abel  v.  Minneapolis    (Minn.,  70  N. 

W.  851),  359. 

Abney  v.  Clark  (87  la.  726),  107. 
Adams  v.  Memphis,  etc.  Ry.  Co.  (2 

Caldwell  645),  96. 
Adams   v.   Beloit    (105  Wis.   363), 

300. 

Adams  v.  Emerson  (6  Pick.  57),  70. 
Adams  v.  Lee  (72  Miss.  281),  206. 
Adams  v.  Mayor,  etc.  (29  Ga.  56), 

148. 
Adams  v.  Saratoga  &  Wash.  Rd.  Co. 

(11  Barb.  414),  74. 
Adams  v.  Selina  (58  Kas.  246),  322. 
Adams  v.  Smith   (6  Dak.  94),  296. 
Adams  v.  Tyler    (121  Mass.  380), 

373. 
Adams  v.  Wiscasset  Bk.  (1  Greenlf. 

161),  98. 
Adamson  v.  N.  Y.  (188  N.  Y.  255), 

322. 
Addis    v.    Pittsburgh    (85    Pa.    St. 

379),  40. 

Agnew  v.  Brail  (124  111.  312) ,  45. 
Agawam  National  Bank  v.  So.  Had- 

ley  (128  Mass.  503),  42,  215. 
Affeld  v.  Detroit   (112  Mich.  560), 

223. 
Agnew  v.  Corunna    (55  Mich.  428, 

54  Am.  Rep.  388),  341. 
Ah  Yon,  In  re  (88  Cal.  99,  11  L.  R. 

A.  408),  131. 
Aikman  v.  Edwards   (55  Kan.  751, 

30  L.  R.  A.  149),  277. 


Akron  v.  Chamberlain  Co.   (34  Oh. 

St.  328),  72. 
Alabama  R.  Co.  v.  Kidd   (29  Ala. 

221),   4. 
Albany   v.  Cunliff    (2  N.   Y.  165), 

315. 
Albright      v.      Sussex      Co.      etc., 

Commrs.    (68  N.  J.  L.  523),  285. 
Aldrich  v.   Gorham    (77  Me.  287), 

335. 
Aldrich  v.  Tripp    (11  R.  I.  141,  23 

Am.  Rep.  434),  332. 
Alexander  v.  Milwaukee    (16  Wis. 

264),  359. 

Alexandria,   etc.   Ry.   Co.   v.   Alex- 
andria  (75  Va.  780),  100. 
Allamango   v.   Albany   County    (25 

Hun,  551),  328. 
Allegheny  County  v.  Gibson  (90  Pa. 

St.  397,  35  Am.  Rep.  607),  322, 

323. 
Allegheny  County  v.  Paris  (93  Va. 

615,  25  S.  E.  882) ,  209. 
Allen  v.  Baltimore  &  Ohio  Ry.  Co. 

(114  U.  S.  311),  371. 
Allen  v.   Boston    (159  Mass.  324), 

70. 
Allen  v.  Burlington    (45  Vt.  202), 

218. 
Allen  v.  Chippewa  Falls    (52  Wis. 

430,  38  Am.  Rep.  748),  349,  355. 
Allen  v.  Decatur  (23  111.  372),  316. 
Allen  v.  Drew  (44  Vt.  174),  116. 
Allen  v.  Jay   (60  Me.  124,  11  Am. 

Rep.  185),  232. 

Allen  v.  Jones   (41  Ind.  438),  100. 
Allen  v.  La  Fayette  (89  Ala.  641,  9 

L.  R.  A.  497),  38,  224,  228. 


XIX 


XX 


TABLE   OP    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Allen  v.  Louisiana   (103  U.  S.  80), 

233. 
Allen  v.  Taunton    (19  Pick.  485), 

61,  82. 
Allen  v.  McKeen  (1  Sumner,  276), 

3. 
Allentown   v.    Henry    (73    Pa.    St. 

404),  118. 
Allison  v.  Juniata  Co.   (50  Pa.  St. 

351),  222. 
Alsbath  v.  Philbrick    (50  N.  J.  L. 

581),  292. 
Altgeld  v.    San   Antonio    (81   Tex. 

436),  95,  114. 
Altnow    v.    Town    of    Libbey     (30 

Minn.  186,  44  Am.  Rep.  191),  337. 
Alton  v.  Mulledy  (21  111.  76),  125. 
Altoona  v.  Bowman  (171  Pa.  St. 

307),  126. 
Alvord  v.   Syracuse  Savings  Bank 

(98  N.  T.  599,  8  Am.  &  Eng.  Corp. 

Cas.  598),  238. 
Amberson  Ave.,  In  re  (179  Pa.  St. 

634),  119. 
Am.  Print  Wks.  v.  Lawrence,    (21 

N.  J.  L.  248),  100. 
American  Water  Works,  etc.  Co.  v. 

Home  Water  Co.  (115  Fed.  171), 

39. 
Ames  v.  Lake  Superior,  etc.  Co.  (21 

Minn.  241),  106. 
Amy  v.  Watertown  (130  U.  S.  301), 

365. 
Anderson  v.  Board  (122  Mo.  61,  26 

L.  R.  A.  707),  40,  41. 
Anderson  v.  City  of  Wellington  (40 

Kan.  173,  2  L.  R.  A.  110.  10  Am. 

St.  175),  78,  150,  156,  165,  167. 
Anderson   v.    East    (117   Ind.    126, 

2  L.  R.  A.  712),  311,  320,  336. 
Anderson  v.  Santa  Anna  Co.   (116 

U.  S.  356),  227. 
Anderson  v.  Trenton   (42  N.  J.  L. 

486),  294,  295. 

Anderson  v.  Wilmington   (8  Hous- 
ton, 516),  336. 


Andover  v.  Sutton   (12  Met.  182), 

69. 

Andrews  v.  King  (77  Me.  224),  203. 
Andrews  v.  Portland  (79  Me.  484, 

10  Am.  St.  280),  193,  194. 
Anne    Arundel    County    v.    Diwell 

(54  Md.  350,  39  Am.  Rep.  393), 

313,  337. 
Anthony  v.  Adams    (1  Met.  284), 

315. 
Anthony  v.  Jasper  Co.    (101  U.  S. 

C93),  241. 
Anthony  v.  Jasper  Co.    (4  Dill.  C. 

C.  136),  241. 
Appleton    v.    Newton     (178    Mass. 

276),  107,  108. 
Argenti  v.  San  Francisco  (16  Cal. 

255),  212,  214,  228. 
Arkadelphia  Lumber  Co.  v.  City  of 

Arkadelphia   (56  Ark.  370,  19  S. 

W.  1003),  129. 
Armstrong    v.    Ackley     (71    Iowa, 

76),  346. 
Armstrong  v.   St.   Paul    (30  Minn. 

299),  360. 
Arnold  v.  Hudson  R.  Co.  (55  N.  T. 

661),  103. 
Arnott  v.  Spokane  (6  Wash.  442), 

221. 
Aron  v.  City  of  Wausau  (74  N.  W. 

354),  322. 

Arris  v.  Stukeley  (2  Mod.  2GO) ,  194. 
Ash  v.  Parkinson  (5  Nev.  15) ,  255. 
Ashley  v.  Calliope  (71  Iowa,  466), 

279. 
Ashley   v.   Port  Huron    (35   Mich. 

296),  356. 
Aspinwall  v.  Daviess  Co.  (22  How., 

U.  S.,  160,  364),  237,  241. 
Aston  v.  Newton   (134  Mass.  507), 

339. 

Astor  v.  Mayor  (66  N.  Y.  567),  266. 
Astor  v.  New  York  (62  N.  Y.  567), 

259. 
Athens  Terminal  Co.  v.  Athens  T. 

and  M.  Works  (129  Ga.  393),  74, 


TABLE   OP    CASES    CITED. 


XXI 


[REFERENCES  ARE  TO  PAGES.] 


Atkins  v,  Phillips   (26  Fla.  281,  10 

L.  R.  A;  158),  132. 
Atkins  v.   Town  of  Randolph    (31 

Vt.  226) ,  274. 
Atkinson    v.    Bartholow     (4    Kan. 

124),  301. 
Atlanta  v.  First  Presb.  Church  (86 

Ga.  730,  12  L.  R.  A.  852),  121, 

122. 
Atlanta  v.  Halleday  (96  Ga.  546,  26 

S.  E.  509),  147. 
Atlantic   City   W.    W.    v.    Atlantic 

City  (39  N.  J.  Bq.  367),  84. 
Atlantic  City  W.  W.  v.  Read    (50 

N.  J.  L.  665),  247,  253. 
Attaway    v.    Cartersville    (68    Ga. 

740),  324. 
Attorney-General    v.    Boston     (123 

Mass.  460),  370. 

Attorney-General  v.  Common  Coun- 
cil  of  Detroit    (113  Mich.   388), 

185. 
Attorney-General   v.    Detroit   Com. 

Co.  (148  Mich.  71),  230,  264,  267. 
Attorney-General    v.    Detroit     (26 

Mich.  262),  370. 
Attorney-General  v.  Dover    (62  N. 

J.  L.  138),  22. 
Attorney-General    v.     Jochim     (99 

Mich.  358,  23  L.  R.  A.  699),  199. 
Attorney-General    v.    Lathrop     (24 

Mich.  235),  266. 
Attorney-General    v.    Marston    (66 

N.  H.  485.  13  L.  R.  A.  670) ,  185. 
Attorney-General   v.   McClear    (146 

Mich.  45) ,  258. 
Attorney-General     v.     Metropolitan 

R.  Co.    (125  Mass.  515,  at  518), 

73,  74. 
Attorney-General    v.    Northampton 

(143  Mass.  589),  371. 
Attorney-General    v.    Shepard    (62 

N.  H.  383),  173. 
Attorney-General  v.   Stratton    (194 

Mass.  51),  198,  199. 
Attorney-General   v.   Varnum    (167 

Mass.  477),  179. 


Atwell   v.   Zeluff    (26   Mich.   118), 

218. 
Aull   Sav.  Bank  v.  Lexington    (74 

Mo.  104),  221,  223. 
Aurora  v.  West   (22  Ind.  88),  241 
Austin   v.   Austin   Cemetery   Ass'n 

(87  Tex.  330),  146,  152. 
Austin  v.  Austin  Gas  Co.   (69  Tex. 

180),  114. 

Austin  v.  Johns  (62  Tex.  179),  195 
Austin  v.  Nalle  (85  Tex.  520),  226. 
Austin  v.  Seattle  (2  Wash.  667). 

251. 
Austin  v.  Vrooman  (128  N.  Y.  229 

14  L.  R.  A.  138),  305. 
Ayers,  Appeal  of  (122  Pa.  St.  266), 

291. 


B. 


Babbidge  v.  Astoria  (25  Oreg.  417), 

136. 
Babcock  v.  Fond  du  Lac  (58  Wis. 

231),  218. 
Backman  v.  Charlestown  (42  N.  H. 

125),  42. 
Backus  v.  Detroit  (49  Mich.  110,  43 

Am.  Rep.  447),  56. 
Backus  v.  Lebanon    (11  N.  H.  19: 

35  Am.  Dec.  466),  106. 
Bacon  v.  Savannah    (86  Ga.  301), 

120. 
Badeau  v.  United  States  (130  U.  S. 

439),  185. 
Badger  v.  United  States   (93  U.  3. 

599),  198,  365. 
Bailey  v.  Mayor  (3  Hill,  N.  Y.  531) . 

4. 
Bailey  v.  New  York    (3  Hill,  531, 

30  Am.  Dec.  669) ,  310,  332. 
Baily  v.  Philadelphia   (184  Pa.  St. 

594),  92,  93,  96. 
Bailey  v.  Tabor  (5  Mass.  286,  4  Am. 

Dec.  57),  241. 
Bailey  v.  Woburn  (126  Mass.  416), 

101. 
Baker  v.  Johnson  (41  Me.  15),  365. 


xxn 


TABLE   OF   CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Baker  v.  Marshall   (15  Minn.  177. 

Gil.  136),  362. 
Baker  v.  Portland  (58  Me.  199,  10 

Am.  L.  Reg.,  N.  S.,  559),  144. 
Baker  v.  Steamboat  (14  Iowa,  214). 

302. 
Balch  v.  County  Com'rs  (103  Mass. 

106),  101. 

Baldwin  v.  Smith  (82  111.  162),  147. 
Ball  v.  Woodbine  (61  Iowa,  83,  47 

Am.  Rep.  805),  316,  321. 
Baltimore  v.  Cemetery  Co.   (7  Md. 

517),  121. 
Baltimore  v.  Clunet   (23  Md.  449), 

105. 
Baltimore  v.  Gill  (31  Md.  375),  248 

370. 
Baltimore  v.  Hughes   (1  Gill  &  J 

480),  120. 
Baltimore  v.  Keeley  Institute   (81 

Md.  106,  27  L.  R.  A.  647),  61,  62. 
Baltimore  v.  Keyset  (72  Md.  106), 

42. 
Baltimore  v.  Marriott  (9  Md.  160), 

336. 
Baltimore    v.    O'Donnell    (54    Md, 

110),  342. 
Baltimore  v.  Poultney  (25  Md.  18). 

170. 
Baltimore   v.   Proprietors    (7   Md. 

517),  122. 
Baltimore  v.  Radicke  (49  Md.  217), 

146,  151. 

Baltimore  v.  Root  (8  Md.  95),  373. 
Baltimore  v.   State    (15  Md.  376), 

265. 
Baltimore  Belt  R.  Co.  v.  Baltzell 

75  Md.  94),  107,  108. 
Baltimore  and  O.  R.  Co.  v.  Pitts- 
burg  W.  and  K.  R.  Co.,   (17  W. 

Va.  812),  105. 
B.  and  O.,  etc.  R.  Co.  v.  People  (200 

111.  541),  253. 
Baltimore,  etc.  R.  Co.  v.  M'Gruder 

(34  Md.  79,  6  Am.  Rep.  310) ,  105. 


Baltimore,  etc.  Ry.  Co.  v.   Spring 

(80  Md.   510,  27  L.  R.   A.  72), 

229,  231. 
Bancroft  v.  Cambridge  (126  Mass. 

438),  49,  101. 
Bangor  Sav.  Bank  v.  Stillwater  (49 

Fed.  Rep.  721),  228. 
Bannon  v.  Rohmeiser  '90  Ky.  48). 

80. 
Bank  v.  Chillicothe   (7  Ohio,  31), 

236. 
Bank  v.  Dibrell    (3  Sneed,  Temu, 

379),  374. 
Bank  v.  School  District  No.  53   (3 

N.  Dak.  496,  28  L.  R.  A.  642), 

241. 
Bank  of  TJ.   S.  v.   Danbridge    (12 

Wheat  64),  23. 
Bank  of  United  States  v.  Planters' 

Bank  (9  Wheat.,  TJ.  S.,  907),  3,  4. 
Bankhead  v.  Brown  (25  Iowa,  545), 

101. 

Banta  v.  Chicago  (172  111.  204),  56, 
Barber   v.   Abendroth    (102  N.   T. 

406),  331. 
Barber   Asphalt   Pavement   Co.   v. 

Hunt    (100  Mo.  22,   18   Am.   St 

520),  40,  135. 
Barber    Asphalt    Pav.    Co.    v.    St 

Joseph  (183  Mo.  45),  121. 
Barbier  v.  Connelly  (113  U.  S.  27), 

51,  148,  163,  164. 
Bardsley  v.   Sternberg    (17  Wash. 

243),  221. 
Barker  v.  People  (3  Cowen,  N.  Y.. 

685,  15  Am.  Dec.  322),  179. 
Barling  v.  West  (29  Wis.  307),  58. 
Barnard  v.  Knox  Co.  (105  Mo.  382), 

248. 

Barnett  v.  Denison  (145  U.  S.  136), 
237. 

Barnett  v.  Patterson   (48  N.  J.  L. 

395),  172,  173. 

Barnes  v.  Barnes  (6  Vt  388),  23. 
Barnes  v.  Chicopee  (138  Mass.  67, 

52  Am.  Rep.  259),  341. 


TABLE  OF   CASES   CITED. 


XX111 


[REFERENCES  ARE  TO  PAGES.] 


Barnes  v.  District  of  Columbia  (91 

U.  S.  540),  20,  313,  336. 
Barnes  v.  Williams    (53  Ark.  205 

13  S.  W.  845),  195. 
Barnett    v.    Dennison    (145    TJ.    S. 

136),  241. 
Barnum,  In  re  v.  Oilman  (27  Minn. 

466,  38  Am.  Dec.  304),  185,  369. 
Barr  v.  Kansas  City  (105  Mo.  550), 

340. 
Barre  v.  Greenwich  (1  Pick.  129), 

179. 
Barre  Ry.  Co.  v.  Montpelier,  etc. 

Ry.  Co.  (61  Vt.  1,  4  L.  R.  A.  785), 

101. 
Barren  v.   Detroit    (94  Mich.   601, 

19  L.  R.  A.  452),  330. 
Barrows  v.  Sycamore  (150  111.  588) , 

73. 

Barry  v.  Good  (89  Cal.  215),  86. 
Bartlett  v.  Crosier  (17  Johns.  449. 

8  Am.  Dec.  428),  304,  308. 
Barton  v.  Pittsburgh  (4  Brew.,  Pa. 

373),  134. 
Barton  v.  Syracuse  (36  N.  Y.  54) 

349. 
Bass  v.  Ft.  Wayne  (121  Ind.  389), 

104. 
Bassett  v.  Atwater   (65  Conn.  355 

32  L.  R.  A.  575),  362. 
Basshor  v.  Dressel  (34  Md.  503),  24. 
Bassett  v.  Atwater   (65  Conn.  355, 

32  L.  R.  A.  575),  362. 
Bates  v.  Bassett   (60  Vt.  530,  1  L. 

R.  A.  66),  97. 
Bates  v.   Houston    (14  Tex.  Civil 

App.  287),  328. 

Bates  v.  Rutland  (62  Vt.  178),  330. 
Bates  v.  Westborough    (151  Mass. 

174,  23  N.  E.  Rep.  1070,  7  L.  R 

A.  156),  358. 
Bauer  v.  Franklin  Co.  (51  Mo.  205), 

221. 
Bauer  v.  Rochester  (35  N.  Y.  State 

Rep.  959,  12  N.  Y.  Sup.  418),  340. 
Bauman  v.  Campau  (58  Mich.  444). 

311. 


Baumgartner  v.   Hasty    (100   Ind. 

575),  55,  60,  61. 
Baxter  v.   Turnpike  Co.    (10  Lea, 

Tenn.  488),  5. 
Bayer  v.  Hoboken  (44  N.  J.  L.  131), 

139. 
Beach  v.  Gaylord   (43  Minn.  466), 

353. 
Beach  v.  Leahy    (11  Kan.  23),  9, 

299. 

Bean  v.  Jay,  (23  Me.  117),  44. 
Beard  v.  Hopkinsville  (95  Ky.  239), 

248,  252. 
Beardon  v.  Madison   (73  Ga.  184), 

144. 
Beardsley  v.   Hartford    (50  Conn. 

529,  47  Am.  Rep.  677),  335,  346. 
Beardsley  v.  Smith  (16  Conn.  368, 

41  Am.  Dec.  147),  98. 
Beatrice  v.  Leary  (45  Neb.  149,  50 

Am.  St.  547),  355. 
Beaumont  v.  Wilkesbarre  (142  Pa. 

St.  198),  120. 
Beaver    Creek    v.    Hastings     (52 

Mich.  528),  170. 
Becker   v.    Keokuk    Water    Works 

(79  Iowa,  419),  319. 
Becker  v.  Philadelphia,  etc.  R.  Co. 

(177   Pa.    St.   252,   25   L.   R.   A. 

583),  110. 
Becker    v.    Washington     (94    Mo. 

375),  135. 
Bedell,  Ex  parte  (20  Mo.  App.  125) , 

139. 
Belling  v.  Evansville  (144  Ind.  644, 

42  N.  E.  621),  52,  151. 
Belfast  v.  Brooks  (60  Me.  569),  234, 
Belknap  v.  Louisville  (99  Ky.  474) 

235. 
Bell,  Ex  parte   (32  Tex.  Cr.  Rep, 

308,  42  Am.  St.  778),  149. 
Bell    v.    Mobile,    etc.   Ry.    Co.    (4 

Wall.  598),  231. 

Bell  v.  Platteville  (71  Wis.  139),  97. 
Bell  v.  York,   (31  Neb.  842,  48  N. 

W.  878),  347. 


XXIV 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES." 


Belleville    v.    Citizens'    Horse    Car 

Co.    (152   111.   171,   26   L.    R.    A. 

681),  143. 
Belmont  v.   N.   E.   Brick  Co.    (190 

Mass.  442),  53. 
Belo  v.  Forsyth  Co.  (76  N.  C.  489) , 

233. 
Bel  ton  v.  Boston   (54  N.  Y.  245), 

348. 
Bennett's  Appeal   (65  Pa.  St.  242), 

2. 
Bennett  v.   Marion    (106  la.  628), 

105. 
Bennett  v.  Whitney  (94  N.  Y.  302 ) , 

304. 
Bennington  v.  Park   (50  Vt.  178), 

238. 

Benson  v.  Green  (80  Ga.  230),  307. 
Benson  v.  Mayor   (10  Barb.,  N.  Y. 

223),  263. 
Beutley  v.  Board  of  Co.  Com'rs  (25 

Minn.  259),  30. 
Benton  v.  Jackson  (2  Johnson's  Ch. 

325),  21. 
Benton  v.  Trustees  of  Boston  City 

Hospital    (140  Mass.  13),  328. 
Bergen  v.  Rowell    (94  N.  Y.  591) . 

200. 
Bergman  v.  Cleveland  (39  Ohio  St. 

651),  160. 
Bergman  v.  St.  Louis,  etc.  B.  Co. 

(88  Mo.  678),  130. 
Berlin  v.  Gorham   (34  N.  H.  266), 

25. 
Bermonsey  v.  Ramsey   (L.  B.  6  C. 

P.  247),  124. 
Bernards  Tp.  v.  Morrison   (133  U. 

S.  523),  243,  245. 
Bessey  v.  Unity  (65  Me.  342),  21. 
Bethune  v.  Hughes  (28  Ga.  560,  73 

Am.  Dec.  789),  59. 
Betts  v.  Naperville   (214  111.  380), 

184. 
Betz  v.  Limingi  (46  La.  Ann.  1113, 

46  Am.  St.  344),  344. 
Bickenstaff,  In  re  (70  Cal.  35),  164. 


Bieling  v.  Brooklyn  (120  N.  Y.  98), 

346. 
Bier  v.  Gorell  (30  W.  Va.  95,  8  Am. 

St.  17),  193. 
Bigelow  v.  Ballerino  (111  Cal.  559), 

SO. 
Bigelow    v.    Bandolph     (14    Gray 

541),  351. 

Bigelow  v.  Topliff  (25  Vt.  282),  307. 
Biggs  v.  McBride  (17  Oreg.  640,  5 

L.  B.  A.  115) ,  366. 
Billings  v.   Lafferty    (31  111.  318), 

309. 
Bills  v.  Goshen  (117  Ind.  221,  3  L. 

B.  A.  132,  135,  144,  261),  90,  125. 
Bireus  v.  Harper  (59  111.  21),  373. 
Birge  v.  Chicago,  etc.  By.  Co.  (65 

Iowa,  440),  108. 
Birkholtz  v.  Dinnie  (6  N.  D.  511), 

250. 
Birmingham  v.  Alabama,  etc.  By. 

Co.  (98  Ala.  134,  13  So.  141),  155, 

156. 
Birmingham  v.  Lewis  (92  Ala.  352, 

9  So.  243),  342. 
Birmingham   v.    Bumsey    (63   Ala. 

352),  98. 
Bishop   v.   Macon    (7   Ga.   200,   50 

Am.  Dec.  400),  325. 
Bissell  v.  Davison  (65  Conn.  183,  29 

L.  B.  A.  251),  53,  88. 
Bissell  v.  Jeffersonville   (24  How.. 

U.   S.,  287),  238,  243. 
Bissell  v.  Kankakee  (64  111.  249,  21 

Am.  Bep.  554),  232,  237,  241. 
Bittenhaus  v.  Johnson  (92  Wis.  588, 

32  L.  B.  A.  380),  49. 
Bitting  v.  Commonwealth   (12  Atl. 

29),  300. 

Bittinger  v.  Bell  (65  Ind.  445),  234. 
Bizzell,  In  re  (112  Ala.  210,  21  So. 

371),  143. 
Black  v.  Columbia    (19  S.  C.  412, 

45  Am.  Bep.  785),  318,  325. 
Black  v.  Cohen  (52  Ga.  621),  228. 
Black  v.   hughes  (67  111.  384),  228. 


TABLE  OP    CASES   CITED. 


XXV 


[REFERENCES  ARE  TO  PAGES.] 


Blair  v.  Chicago   (201  TJ.  S.  400), 

92. 
Blair  v.  Cummings  (111  TJ.  S.  363), 

232. 
Blair  v.  West  Point  Precinct  (2  Mc- 

Crary,  459),  21. 
Blanchard  v.  Bissell    (11  Ohio  St. 

96),  26,  125,  126,  129,  135,  136, 

277. 
Blanchard  v.  Moulton  (63  Me.  434), 

67,  125. 
Blanchard   v.   Hartwell    (131   Cal. 

263),  32. 
Blandin  v.  Burr  (13  Cal.  343) ,  275, 

276. 
Bledsoe  v.  Gary  (95  Ala.  70,  10  So. 

502),  64. 
Blizzard  v.  Danville    (175  Pa.   St 

479),  359. 
Blodgett  v.  Boston  (8  Allen,  237), 

345. 
Bloodgood  v.  Mohawk,  etc.  R.  Co. 

(18  Wend.  9,  31  Am.  Dec.  313), 

112. 
Bloom  v.  Xenia  (32  Ohio  St.  461), 

126,  134. 
Bloomfield   v.    Charter   Oak    Bank 

(121  U.  S.  121),  12,  14,  170. 
Bloomington   v.    Latham    (142   111. 

462,  18  L.  R.  A.  487),  151. 
Bloomington  v.  Richardson  (38  111. 

60),  156. 
Blue  Earth   (Co.  of)  v.  St.  Paul  & 

Sioux  City  R.  Co.  (28  Minn.  503, 

507,  11  N.  W.  73),  7. 
Bloomsburg  Imp.  Co.  v.  Bloomsburg 

(215  Pa.  St.  452),  210,  211. 
Bluffton  v.   Silver    (63  Ind.  262), 

370. 

Bluffton  v.   Studabaker    (106  Ind. 
129),  61,  301. 

Board  v.  City  of  Springfield  (63  111. 
66),  269. 

Board  v.  Harrell    (147  Ind.  500), 

248. 
Board  v.  Leahy  (24  Kan.  *  t),  295. 


Board  v.   Stevenson    (46  N.  J.  L. 

173),  283. 
Board  of  Commissioners  v.  Board 

of  Commissioners    (26  Kan.  181, 

201),  251. 
Board  of  Commissioners  v.  Duprez 

(87  Ind.  509),  315. 
Board   of   Commissioners   v.    Platt 

C.  C.  A.,  79  Fed.  567),  251. 
Bd.  of  Com'rs  v.  Sellew  (99  U.  S. 

624),  177. 
Board    of    Education    v.    Blodgett 

(155  111.  441,  31  L.  R.  A.  70),  225. 
Board  of   Education   v.   State    (26 

Kan.  44),  229. 
Board  of  Education  v.  Neidenber- 

ger    (78  111.  58),  97,  98. 
Board  v.  Minor  (23  Ohio  St.  211), 

88. 
Bodge  v.  Philadelphia  (167  Pa.  St 

492),  333. 
Boehm  v.  Baltimore  (61  Md.  259), 

57. 
Boehme  v.  Monroe  (106  Mich.  401), 

126. 
Bogaert   v.   Indianapolis    (13   Ind. 

134),  52. 

Bogie  v.  Waupun  (75  Wis.  1),  348. 
Bohen  v.  Waseca  (32  Minn.  176,  50 

Am.  Rep.  564),  346. 
Bolles  v.  Brimfield  (120  U.  S.  759), 

227. 

Bolton  v.  Velines  (94  Va.  393) ,  324. 
Bonaparte  v.  Camden,  etc.  R.  Co. 

(1  Bald.  205),  4. 

Bonds  of  Madeira  Irrigation  Dis- 
trict, In  re    (92  Cal.  296,  14  L. 

R.  A.  755),  116,  117. 
Bonner  v.  State  (7  Ga.  473) ,  204. 
Boom  Co.  v.   Patterson    (98  U.   S. 

403),  109. 
Boonville   v.   Ormrod's   Admr.    (26 

Mo.  193),  107. 
Boro  v.  Phillips  Co.   (4  Dill.  C.  C. 

216),  223. 
Borough  of  Vineland  (60  N.  J.  L. 

264),  116. 


XXVI 


TABLE  OP    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Borough  of  Sayre  v.  Phillips  (148 

Pa.  St.  482),  158. 
Boss  Machine  Works  v.  Park  Co. 

Com'rs  (115  Ind.  234),  211. 
Boston  v.  Baldwin  (139  Mass.  315), 

64. 
Boston,  etc.  Co.  v.  Boston  (4  Mete. 

181),  217. 
Boston  &  M.  R.  R.  Co.  v.  Lowell, 

etc.  R.  Co.   (124  Mass.  368),  102, 
Boston  Belting  Co.  v.  Boston   (149 

Mass.  44),  356. 
Boston   v.    Richardson     (13    Allen 

146),  71,  72,  77. 
Boston  Seaman's  Friend  Society  v. 

Boston    (116  Mass.   181,  19  Am. 

Rep.  153).  122. 

Boston  v.  Shaw  (1  Met.  130),  82. 
Boston  v.  Wilson  (4  Tex.  400),  204, 
Bott  r.  Pratt  (33  Minn.  323),  144. 
Boucher  v.  New  Haven  (40  Conn. 

456),  340. 
Boutte  v.  Eramer  (43  La.  Ann.  980, 

15  L.  R.  A.  63),  303. 
Bow  v.  Allenstown  (34  N.  H.  351), 

19,  23,  24. 
Bowditch  v.  Boston  (101  U.  S.  16), 

100,  325. 
Bowdoinham  v.  Richmond    (6  Me. 

112,  19  Am.  Dec.  197),  280. 
Bowen  v.  Greensboro  (79  Ga.  709), 

234. 
Bowen   v.   Mauzy    (117   Ind.  258), 

55. 
Bowers    v.    Suffolk    Mfg.    Co.     (4 

Cush.  332),  67. 
Bowery  Nat.  Bank  v.  Wilson   (122 

N.  Y.  478,  9  L.  R.  A.  706),  192. 
Bowes  v.  Boston  (155  Mass.  344,  15 

L.  R.  A.  365),  341. 
Bowlin  v.  Furman    (28  Mo.  427), 

96. 
Bowling  Green  v.  Carson  (10  Bush, 

Ky.,  164),  159. 

Bowman  v.  St.  John  (43  111.  337), 
131. 


Boyd  v.  Chambers    (78  Ky.  140), 

63. 
Boyd  v.  Detroit  Bd.  of  Health  (140 

Mich.  306),  364. 
Boyd  v.  Insurance  Patrol  (113  Pa. 

St  269),  327. 
Boyden  v.  United  States  (SO  U.  S. 

17),  206. 
Braconier  v.  Packard    (136  Mass. 

50),  363. 
Bradbury  v.  Walton  (94  Ky.  163), 

80. 
Bradley  v.  Fisher  (13  Wall.,  U.  S., 

335) ,  305. 
Bradley  v.  Rochester  (54  Hun,  N. 

Y.,  140),  164. 
Bradwell  v.  Illinois  (16  Wall.  130), 

179. 
Brady  v.  New  York  (20  N.  Y.  312), 

40,  43. 
Bray    v.    Wallingford     (20    Conn. 

416),  373. 
Breevort  v.  Detroit  (24  Mich.  322), 

40. 
Brenham   v.   Brenham   Water   Co. 

(67  Tex.  542) ,  32,  91. 
Brenham  v.  German  Am.  Bank  (144 

U.  S.  173),  226,  227,  241. 
Brennan  v.  City  of  St.  Louis   (92 

Mo.  482),  341. 
Brennan  v.  Guardians  (L.  R.  2  C. 

L.  42) ,  329. 
Brewer  v.  Otoe  Co.   (1  Neb.  373), 

224. 
Brewster   v.    Syracuse    (19   N.   Y. 

116),  275,  276. 
Brickley  v.   Boston    (20  Fed.  20), 

97. 
Bridgeport  v.  Housatonic  Ry.  Co. 

(15  Conn.  475),  228. 
Bridgeport    v.    Railroad    Co.     (15 

Conn.  475),  31,  32. 
Bridgeport    v.     Railway    Co.     (36 

Conn.  255) ,  114,  121,  122. 
Briegel  v.  Philadelphia  (135  Pa.  St 

451,  30  Am.  &  Eng.  C.  C.  501), 

352. 


TABLE  OP   CASES   CITED. 


XXV11 


[REFERENCES  ARE  TO  PAGES.] 


Briggs  v.  Lewiston   (29  Me.  472), 

217. 
Briggs  v.  Lewiston  (79  Maine  363) , 

74. 
Bright  v.  Toronto   (12  TT.  C.  433), 

159. 
Brimmer  v.  Boston  (102  Mass.  19), 

91. 
Bristol  v.  New  Chester    (3  N.  H. 

524),  279. 

Britton  v.  Steber  (62  Mo.  370),  267. 
Broad  St.  Church's  App.   (165  Pa. 

St.  475). 
Broadway    Church  v.  McAtee    (8 

Bush,  Ky.,  508) ,  124. 
Broburg  v.  Des  Moines   (63  Iowa, 

523,  19  N.  W.  340,  50  Am.  Rep. 

756),  347. 

Brock  v.  Hishen  (40  Wis.  674),  112. 
Brockway   v.   Roseburg    (46   Oreg. 

77),  253. 
Brodbine    v.    Revere     (182    Mass. 

598),  259,  266. 
Brodhead  v.  Milwaukee  (19  Wis. 

624,  88  Am.  Dec.  711),  232. 
Brokaw  v.  Bloomington  Tp.  Com'rs 

(130  111.  482),  367. 
Brooklyn,  In  re  (143  N.  Y.  596,  26 

L.  R.  A.  271),  86,  103. 
Brooklyn   v.   Meserole    (26  Wend., 

N.  Y.,  132),  370. 
Brooklyn  Park  Com'rs  v.  Armstrong 

(45  N.  Y.  234,  243,  244,  6  Am.  Rep. 

70),  101,  157,  270. 
Brooks  v.  Baltimore  (48  Md.  265), 

115. 

Brooks  v.  Hyde  (37  Cal.  366),  283. 
Brooks  v.  Morgan   (86  Mich.  576), 

305. 

Brookville  v.  Arthurs  (130  Pa.  St. 

501),  336,  344. 
Broughton  v.  Pensacola  (93  U.  S. 

266),  257,  264. 
Brown  v.  Atchison  (39  Kan.  54), 

213. 


Brown   v.   Bon  Homme  Co.    (1   S. 

Dak.  216,  46  N.  W.  173),  228,  238, 

241,  243,  244. 
Brown  v.  Bradlee  (156  Mass.  28,  15 

L.  R.  A.  509),  208. 
Brown  v.  City  of  Cory  (175  Pa.  St. 

528,  34  Atl.  854),  248,  249,  253. 
Brown  v.  Denver  (7  Colo.  305),  299, 

301. 
Brown  v.  District  of  Columbia  (127 

U.  S.  579),  173. 
Brown  v.  Gates   (15  W.  Va.  131), 

98. 
Brown  v.  Galveston   (97  Texas  1), 

18,  259,  264. 
Brown  v.  Guyandotte   (34  W.  Va. 

299),  328. 
Brown  v.  Ingalls    Twp.     (81    Fed. 

485),  241. 

Brown  v.  Jerome  (102  111.  371),  64. 
Brown  v.  Judge  of   Sup.   Ct.    (145 

Mich.  413),  37. 
Brown  v.  Keener    (74  N.  C.  714), 

53. 
Brown  v.  Lester    (21    Miss.    392), 

309. 
Brown  v.  Rundlett  (15  N.  H.  360), 

208. 
Brown  v.  Russell  (166  Mass.  14,  43 

N.  E.  1005,  33  L.  R.  A.  253),  178, 

180. 
Brown  v.  Turner    (70   N.    C.    93), 

204. 
Brown  v.  Vinalhaven  (65  Me.  402) , 

328. 
Brown  ell  v.  Greenwich   (114  N.  Y. 

518,  4  L.  R.  A.  685),  243. 
Browning  v.  Board    (44  Ind.  11), 

315. 
Brownville  v.  Cook   (4  Neb.  106), 

145. 
Brownville  v.  League   (129  U.  S. 

493),  365. 
Brugerman  v.  True  (25  Minn.  123), 

106. 
Brumm's  Appeal   (Pa.  St.,  12  Atl. 

855),  261. 


xxvm 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Brunswick  v.  Braxton  (70  Ga.  193), 

336. 
Bryant  v.  St.  Paul  (33  Minn.  2S9), 

313,  328. 
Bryant  v.  Robbins   (7  Iowa,  258), 

286. 
Bryden  v.  Campbell  (40  Md.  338), 

307. 
Buchanan  v.  Litchfield   (102  U.  S. 

278),  239,  245. 
Buck  v.  Eureka    (109  Cal.  504,  30 

L.  R.  A.  409),  195. 
Buckner  v.  Gordon    (81  Ky.  665), 

180. 

Buell  v.  Ball  (20  Iowa,  282),  174. 
Buell    v.    Buckingham    (16    Iowa, 

284),  173. 

Buffalo,  In  re  (68  N.  Y.  167),  102. 
Buffalo  v.  Bettinger  (76  N.  Y.  393) , 

45,  209. 
Buffalo  v.  Harling   (50  Minn.  551, 

52  N.  W.  931) ,  361. 
Buffalo  v.  New  York,  etc.  Ry.  Co. 

(152  N.  Y.  276,  46  N.  E.  496), 

78,  144,  155. 
Buffalo  City  Cemetery  v.  Buffalo 

(46  N.  Y.  5CB),  122. 
Bulger  v.  Eden  (82  Me.  352),  313. 
Bunch  v.  Edenton   (90  N.  C.  431), 

336. 
Bunting  v.  Willis  (27  Grat.  144,  21 

Am.  Rep.  338),  198. 
Burch  v.  Hardwicke  (30  Grat.  24), 

265,  266. 
Burford  v.  Grand  Rapids  (53  Mich. 

98,  51  Am.  Rep.  105),  311,  320, 

343,  356. 
Burg  v.  Chicago,  etc.  Ry.  Co.    (90 

Iowa,  106,  48  Am.  St.  419),  148, 

155. 
Burleson    v.    Reading    (117    Mich. 

115,  68  N.  W.  294),  349. 
Burlington  v.  Dennison    (42  N.  J. 

L.  165),  127. 
Burlington  v.  Gilbert  (31  la.  356), 

72. 


Burlington  v.  Penn.  R.  Co.  (56  N. 

J.   Eq.  259),  74. 
Burlington  Water  Co.  v.  Woodward 

(49  Iowa,  58),  252. 
Burmeister,  Petition  of   (76  N.  Y. 

174),  117. 
Burineister   v.   Howard    (1   Wash. 

207),  144. 
Burnes  v.  City  of  Atchison  (2  Kan. 

454),  20. 
Burnett  v.  Boston  (173  Mass.  173), 

104. 
Burnett  v.  Maloney  (97  Tenn.  697, 

34  L.  R.  A.  541) ,  225. 
Burnham  v.  Fond  du  Lac  (15  Wis. 

193-211),  373. 
Burns  v.  Bradford  (137  Pa.  St.  361, 

11  L.  R.  A.  726),  338,  346. 
Burns  v.  Cohoes  (67  N.  Y.  204),  354. 
Burr  v.  Plymouth   (48  Conn.  460), 

348. 
Burrill  v.  Augusta  (78  Me.  118,  57 

Am.  Rep.  788),  326. 
Burritt  v.  Commissioners  of  State 

Contracts  (120  111.  322),  128,  131. 
Burrton  v.  Harvey  Co.  Bank    (28 

Kan.  390),  221. 
Burwell  v.  Vance  Co.  (93  N.  C.  73), 

106. 

Bushnell  v.  Scott  (21  Wis.  451),  67. 
Bussey  v.  Gilmore  (3  Me.  191),  46. 
Butchers  v.  Crescent  City  (111  U. 

S.  746),  52. 
Butte,  A.  &  P.  R.  Co.  v.  Montana 

U.  R.  Co.   (16  Mont.  504),  104. 
Butterworth   v.   Bartlett    (50   Ind. 

537),  80. 
Buttler  v.   Kent    (19  Johns.  223), 

304. 
Butler  v.  Lewiston  (11  Idaho,  393), 

301. 
Butler  v.  Oxford   (186  N.  Y.  444), 

338. 
Butler  v.  Passaic  (44  N.  J.  L.  171), 

127. 
Buttrick  v.  Lowell   (1  Allen,  172), 

323. 


TABLE  OF   CASES   CITED. 


XXIX 


[REFERENCES  ARE  TO  PAGES.] 


Butz  v.  Cavanaugh  (137  Mo.  503), 

321. 
Byers  v.  Com.  (42  Pa.  St.  89),  145. 

a 

C.,  B.  &  Q.  R.  v.  Drainage  Com'rs 

(200  U.  S.  561),  48. 
Cairncross  v.   Pewaukee    (78  Wis. 

66,  10  L.  R.  A.  473),  335,  341. 
Cairo,  etc.  R.  Co.  v.  Sparta  (77  111. 

505),  274. 
Calder  v.  Smalley  (66  Iowa,  219), 

345. 
Caldwell  v.  Alton    (33  111.  416,  85 

Am.  Dec.  282),  59. 
Calwell  v.  Boone    (51  Iowa,   687, 

33  Am.  Rep.  154),  323,  324,  343. 
California,  etc.  Ry.  Co.  v.  Butte  Co. 

(18  Cal.  671),  233. 
Callan  v.  Wilson   (127  U.  S.  540), 

65. 
Callanan    v.    Oilman     (107    N.    T. 

360),  340,  346. 
Callendar  v.  Marsh  (1  Pick.,  Mass., 

418),  72,  359. 
Camden  v.   Mulford    (26  N.   J.  L. 

49),  372. 

Camden,  etc.  R.  Co.  v.  May's  Land- 
ing, etc.  Co.    (48  N.  J.  L.  530), 

210. 
Campana  v.  Calderhead  (17  Mont. 

548,  36  L.  R.  A.  277),  87. 
Campbell  v.  Polk  Co.  (3  Iowa,  467) , 

223. 
Campbell  v.  Polk  Co.  (76  Mo.  57), 

223. 
Campbell  v.  Race    (7   Cush.   408), 

338. 
Campbell  v.  Stillwater    (32    Minn. 

308),  341. 
Canal  Co.  v.  St.  Louis   (2  Dillon, 

(U.  S.  C.  Ct.)  71),  73. 
Cannon  v.  New  Orleans  (20  Wall. 

577),  263. 
Canton  v.  Nist  (9  Ohio  St.  439,  34 

Am.  Dec.  625),  148. 


Cantrill  v.   Sainer    (59  Iowa,  26), 

126,  143. 
Cape  Girardeau  v.  Forgen  (30  Mo. 

App.  551),  128. 
Cape  Girardeau  v.  Riley   (52  Mo. 

App.  424),  131. 
Carpenter  v.  Cohoes  (81  N.  Y.  21, 

37  Am.  Rep.  468),  338. 
Carpenter  v.  People  (8  Colo.  116), 

299. 

Carr  v.  State  (111  Ind.  101),  200. 
Carr  v.  St  Louis  (9  Mo.  191),  148. 
Carrington   v.    St.   Louis    (89   Mo. 

208),  327,  352. 
Carrington  v.  U.  S.   (208  U.  S.  1), 

178. 
Carroll   Co.   v.    Smith    (111   U.   S. 

556),  235. 
Carson    v.    McFettridge    (15    Ind. 

327) ,  182. 
Carstesen  v.  Town  of  Stratford  (67 

Conn.  428),  350. 
Carter  v.   Bridge  Co.    (104  Mass. 

236),  273,  276. 
Carter  v.  Thorson   (5  S.  D.  474), 

249. 
Carter  Co.   v.   Sinton    (120  U.   S. 

517),  225. 
Gary  v.  North  Plainfield  (49  N.  J. 

L.  110),  58. 
Cass  v.  Dillon    (2   Ohio   St.   607), 

289. 

Cass.  v.  Jordan  (95  TJ.  S.  373),  236. 
Cass   Co.   v.   Johnston    (95   U.    S. 

360),  235. 

Central  v.  Sears  (2  Colo.  588),  128. 
Central  v.  Wilcoxen  (3  Colo.  566), 

222. 

Central  Bridge  Corp.  v.  Lowell  (15 

Gray,  106),  170. 
Central  Trans.  Co.  v.  Pullman  P. 

C.  Co.  (139  U.  S.  22),  211,  215. 
Chaddock  v.  Day  (75  Mich.  527,  13 

Am.  St.  468),  49. 
Chadeayne  v.  Robinson   (55  Conn. 

345),  352. 


XXX 


TABLE  OP    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES/ 


Chadoburne  v.   Newcastle    (48  N. 

H.  196) ,  323. 
Chadwick  v.  Kelly  (187  U.  S.  540), 

117. 
Chaffee  Co.  Com'rs  v.  Potter  (142 

U.  S.  355),  245. 
Chamberlain  v.  Dover  (13  Me.  466, 

29  Am.  Dec.  517),  171. 
Chamberlain  v.  Evansville  (77  Ind. 

542),  301. 
Chambers  v.  Barnard  (127  Ind.  365, 

11  L.  R.  A.  613),  186. 
Chambers    v.    Satterlee    (40    Cal. 

497),  122. 
Chambers    v.    St.    Louis    (29    Mo. 

543),  47. 
Champaign  v.  Jones  (132  111.  304) , 

340. 
Champer  v.  Greencastle   (138  Ind. 

339,  46  Am.  St.  390),  58,  150,  151. 
Chandler    v.    Boston     (112    Mass. 

200),  26,  277. 
Chandler  v.  Scott  (127  Ind.  226,  10 

L.  R.  A.  375),  306. 
Chapman  v.  Douglas  Co.  (107  U.  S. 

355),  214,  216,  228. 
Chapman  v.  Oshkosh,  etc.  Ry.  Co. 

(33  Wis.  629),  109. 
Chapman  v.  Rochester   (110  N.  T. 

273,  1  L.  R.  A.  296) ,  356. 
Charleston  v.  Reed  (27  W.  Va.  681, 

55  Am.  Rep.  336),  60. 
Chariton    v.    Holliday     (60    Iowa, 

391),  137. 
Chariton    v.    Simmons    (87    Iowa, 

226),  156. 
Chase    v.    Merrimack    Bank     (19 

Pick.  564),  98. 
Chase  v.   Sheerer   (136  Cal.  248), 

91. 
Cheney  v.  Barker  (198  Mass.  356), 

364. 
Cheaney  v.  Hooser  (9  B.  Munroe, 

338),  25. 
Cheeney  v.  Brookfield  (60  Mo.  53), 

224. 


Chemung  Bank  v.  Chemung  (5  De- 

nio,  517),  224. 
Cheshire    v.    Reservoir    Co.     (119 

Mass.  356),  69. 

Chesapeake  P.  Tel.  Co.  v.  Macken- 
zie   (74  Md.  36,  21  Atl.  690,  28 

Am.  St.  Rep.  219),  76. 
Chicago  v.  Chicago  Ball  Club  (196 

111.  54),  81. 
Chicago    v.    Baptist    Theo.    Union 

(115  111.  245),  121. 
Chicago  v.  Bartee  (100  111.  57),  58. 
Chicago  v.  Blair  (149  111.  310,  24  L. 

R.  A.  412),  117. 
Chicago  v.  Jackson  (196  111.  496), 

78. 
Chicago   v.   Gunning   System    (214 

111.  628),  37,  54. 

Chicago  v.  Keefe  (114  111.  222),  336. 
Chicago   v.   Lamed    (34   111.   253), 

120. 
Chicago  v.  McCoy  (136  111.  344,  11 

L.  R.  A.  413),  139. 
Chicago  v.  McGiven  (78  111.  347), 

347. 
Chicago  v.  O'Brien  (111  111.  532,  53 

Am.  Rep.  640),  78,  161,  347. 
Chicago  v.  Rumsey  (87  111.  348),  74. 
Chicago  v.  Seben  (165  111.  371),  355. 
Chicago   v.   Union   Building   Assn. 

(102  111.  79),  79,  371. 
Chicago  v.   Stratton    (162  111.  494, 

35  L.  R.  A.  84),  165. 
Chicago,  etc.  R.  Co.  v.  Chicago  (140 

111.  309),  78. 
Chicago  v.  Trotter   (136  111.  430), 

166. 
Chicago,   Tr.   v.   Chicago    (207  111. 

37),  21. 
Chicago,  etc.  Co.  v.  Chicago  (88  111. 

221),  57. 
Chicago  &  Alton  R.  Co.  v.  Cy.  of 

Carlinville   (200  111.  314),  78. 
Chicago,    etc.    Ry.    Co.   v.   Dunbar 

(100111. 110),  262. 
Chicago,  etc.  Ry.  Co.  v.  Iowa   (94 

U.  S.  155),  5. 


TABLE   OF    CASES    CITED. 


XXXI 


[REFERENCES  ARE  TO  PAGES." 


Chicago,  etc.  Ry.  Co.  v.  Langlade 

(56  Wis.  614),  277. 
Chicago  v.  Milwaukee,  etc.  R.  Co. 

(95  Wis.  561),  74. 
Chicago,  etc.  Ry.  Co.  v.  Minnesota 

(134  U.  S.  418) ,  83. 
Chicago,  etc.  Ry.  Co.  v.  Oconto  (50 

Wis.  189,  36  Am.  Rep.  840),  277. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Lake 

(71  111.  333),  104. 
Chicago,  etc.  R.  Co.  v.  Otoe  Co.  (16 

Wall.  667) ,  231. 
Chicago,  etc.  R.  Co.  v.  Sawyer  (69 

111.  285,  18  Am.  Rep.  618),  349. 
Chicago,  N.  W.  R.  Co.  v.  Morrison 

(195  111.  272),  104. 
Chicago,  etc.  R.  Co.  v.  U.  P.  R.  Co. 

(47  Fed.  15),  210. 
Chicago,  B.  &  Q.  R.  Co.  v.  Haggerty 

(67  111.  113),  78. 
Chicago  v.  Union  Traction  Co.  (199 

111.  259),  78. 
Child  v.  Boston  (4  Allen,  41,  81  Am. 

Dec.  680),  308,  331,  356. 
Childrey  v.  Huntington  (34  W.  Va. 

459,  11  L.  R.  A.  313),  346. 
Childs  v.  Village  of  Minnetonka  (57 

Minn.  526),  278. 
Chin  Yan,  Ex  parte   (60  Cal.  78), 

150,  152. 
Chisholm  v.  Montgomery  (2  Woods, 

C.  C.  584),  238. 
Chope  v.  Eureka  (78  Cal.  588,  4  L. 

R.  A.  327),  335. 
Christianson,  In  re  (43  Fed.  243), 

164,  165. 
Citizens'  Bank  v.  Spenser  (126  la. 

101),  211. 
Citizens'  Bank  v.  City  of  Terrell 

(78  Tex.  450,  14  S.  WT.  1003),  246. 
Citizens'  Gas  &  Mining  Co.  v.  Ell- 
wood  (114  Ind.  332),  125,  144. 
Cincinnati  Board  of  Education  v. 

Minor  (23  Ohio  St.  211),  87. 
Cincinnati  v.  Buckingham  (10  Ohio, 

257),  59. 


Cincinnati  v.  Cameron  (33  Ohio  St. 

336) ,  92. 

Cincinnati,  etc.  R.  Co.  v.  Belle  Cen- 
ter   (48  Ohio   St.   273,  27  N.  E. 

464),  102. 
Cincinnati  v.  White   (6  Pet.  431), 

67,  70. 
City  v.  Erie  Pass.  Ry.  Co.  (7  Phila., 

Pa.,  321),  156. 
City  Council  v.  Aherns    (4  Strob., 

S.  C.,  L.  241),  150. 
City  Council  v.  Lombard    (99  Ga. 

282),  331. 
City  Council  v.  Pepper  (1  Rich.,  S. 

C.,  364),  64. 
City  Council  v.  Van  Dorn  (41  Ala. 

505),  374. 
City  of  Alma  v.  Clow    (146  Mich. 

443),  49. 
City  of  Augusta  v.  Sweeney  (44  Ga. 

463,  9  Am.  Rep.  172),  193. 
City  of  Burlington  v.  Putnam  Ins. 

Co.  (31  Iowa,  102),  129. 
City  of   Caldwell   v.   Prunelle    (57 

Kan.  511),  324. 
City  of  California  v.  Howard   (78 

Mo.  88),  70. 
City    of    Chadron    v.    Glover    (43 

Neb.  732,  62  N.  W.  62),  338. 
City  of  Chicago  v.  Hesing   (83  111. 

204),  341. 
City  of  Delphi  v.  Evans   (36  Ind. 

90),  127. 
City  of  Detroit  v.  Ft.  Wayne,  etc. 

R.  Co.   (95  Mich.  456),  143. 
City  of  Ellsworth  v.  Rossitter  (46 

Kan.  237,  26  Pac.  674),  195. 
City  of  Eufaula  v.  McNab  (67  Ala. 

588),  229. 
City  of  Flora  v.  Naney  (136  111.  45, 

26  N.  E.  645),  344. 
City  of  Goshen  v.  Craxton  (34  Ind. 

239),  145. 
City  of  Indianapolis  v   Bieler  (138 

Ind.  30,  36  N.  E.  857),  158. 
City  of  Indianapolis  v.  Emmelman 

(108  Ind.  530),  342. 


XXX11 


TABLE   OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


City  of  Kingsboro   (101  Ind.  290), 

108. 
City  of  Laredo  v.  Int.  Bridge  &  T. 

Co.  (66  Fed.  Rep.  246) ,  95. 
City  of  Laredo  v.  Nalle   (65  Tex. 

359),  373. 
City  of  London  v.  Wood  (12  Mod. 

674),  64. 
City  of  Newport  v.  Newport  Light 

Co.   (84  Ky.  167) ,  230. 
City  of  Paterson  v.  Barnett  (46  N. 

J.  L.  62),  127,  128. 
City  of  Pawtucket  v.  Bray  (20  R. 

I.  17) ,  37  Atl.  1,  345. 
City  of  Port  Huron  v.  Jenkinson 

(77  Mich.  414,  18  Am.  St.  409), 

347. 
City  of  Poughkeepsie  v.  Quintard 

(136  N.  Y.  275,  32  N.  E.  764),  251. 
City  of  St.  Paul  v.  Colter  (12  Minn. 

41),  50. 
City  of  St.  Paul  v.  Laidler  (2  Minn. 

190),  31. 
City   of    St.   Paul   v.   Lawton    (61 

Minn.  537),  166. 
City  of   St.   Paul   v.   Traeger    (25 

Minn.  252),  31. 
City  of  Tarkio  v.  Cook  (120  Mo.  1, 

41  Am.  St.  678),  143,  144. 
City  Ry.  Co.  v.  Mayor  (77  Ga.  731, 

4  Am.  St.  106),  144. 
Citizens'  Bank  v.  Spenser  (126  la. 

101),  211. 
Circleville  v.  Neuding  (41  Ohio  St. 

465),  314. 
Claflin  v.  Hopkinton  (4  Gray  502), 

81. 
Claghorn  v.  Cullen  (13  Pa.  St.  133, 

53  Am.  Dec.  450) ,  257. 
Claiborne  Co.  v.  Brooks  (111  TJ.  S. 

400),  221,  225,  226,  227. 
Clapp  v.  Board  of  Police  (92  N.  Y. 

415),  203. 

Clapp  v.  Davis  (25  Iowa,  315) ,  373. 
Clark  v.  Chicago    (166  111.  84,  46 

N.  E.  730),  121. 


Clark  v.  Des  Moines  (19  Iowa,  199), 

30,  221,  223,  224. 
Clark  v.  Iowa  City  (20  Wall.  583), 

224. 
Clark  v.  Miller  (54  N.  Y.  528),  300, 

309. 

Clark  v.  Mobile  (36  Ala.  621),  373. 
Clark  v.  Rogers  (81  Ky.  43),  26. 
Clark  v.  Worcester  (125  Mass.  226), 

101. 

Clarke  v.  Irwin  (5  Nev.  Ill),  299. 
Clarke  v.  Rochester   (24  Barb.,  N. 

Y.,  446),  5. 
Clason  v.  Milwaukee  (30  Wis.  316), 

152. 
Clay  v.  Nicholas  Co.  (4  Bush,  Ky., 

154),  227. 
Clement  v.  Town  of  Casper  (4  Wyo. 

494),  158. 
Cleveland,  In  re  (52  N.  J.  L.  188), 

284,  289,  290. 
Cleveland  v.  King  (132  U.  S.  295), 

336,  339,  340. 

Cleveland  v.  Stewart  (3  Ga.  283) ,  3. 
Cleveland  School  Furniture  Co.  v. 

Greenville  (146  Ala.  569),  211. 
Cleveland,  etc.  Ry.  Co.  v.  Conners- 

ville  (147  Ind.  277),  156. 
Cleveland,  etc.  Tel.  Co.  v.  Met.  Fire 

Com.  (55  Barb.  288) ,  42. 
Clifford  v.  Commissioners   (59  Me. 

262),  106. 
Cline  v.  Crescent  City  R.  Co.    (41 

La.  Ann.  1031,  6  So.  851),  336. 
Clinton   v.   Clinton   Co.    (61   Iowa, 

205)  ,52. 
Clinton  v.  Henry  Co.  (115  Mo.  557), 

124. 

Clinton    v.    Railroad    Co.    (24    la. 

455),  68,  72,  260. 
Closson   v.   Trenton    (48   N.   J.   L. 

438),  292. 

Coal   Float   v.   Jeffersonville    (112 

Ind.  19),  152. 
Coates  v.  New  York  (7  Cow.  585), 

52,  133. 


TABLE  OF   CASES   CITED. 


XXX111 


[REFERENCES  ARE  TO  PAGES.] 


Cobb  v.  Portland   (55  Me.  381,  92 

Am.  Dec.  598),  324. 
Cochran  v.  Frostburg  (81  Md.  54), 

35.  321,  322. 
Cochran  v.  McCleary  (22  Iowa,  75), 

171.  368. 
Cochrane    v.    Maiden     (152    Mass. 

365),  354. 
Coe  v.  Railway  Co.  (27  Minn.  197), 

233. 
Coffin  v.  Kearney  Co.  Com'rs   (57 

Fed.  137),  243. 
Coggshal  v.  Des  Moines   (78  Iowa, 

235),  42. 
Coggeshall  v.  Pelton  (7  Johns.  Ch. 

292),  46. 
Cohen   v.   Cleveland    (43   Ohio   St. 

190),  359. 
Cohen  v.  New  York  (113  N.  Y.  532), 

317,  340,  343. 
Cohoes  v.  Delaware,  etc.  Co.   (134 

N.  Y.  397),  66,  67. 
Col.  Pav.  Co.  v.  Murphy   (78  Fed. 

28,  49  C.  C.  A.  17),  42. 
Coldwater  v.  Tucker  (36  Mich.  474, 

24  Am.  Rep.  601),  36. 
Cole  v.  Kegler  (64  Iowa,  59),  54. 
Cole  v.  Muscatine  (14  Iowa,  296), 

360. 
Cole  v.  Nashville  (4  Sneed,  Tenn., 

162),  343. 

Cole  v.  State  (102  N.  Y.  48),  275. 
Coleman   v.    Sands    (87   Va.   689), 

198. 
Coler  v.  Cleburne  (131  U.  S.  162), 

238. 
Coler  v.  Dwight  School  Tp.    (3  N. 

Dak.,  249,  55  N.  W.  587),  243. 
Coles  v.   Williamsburg    (10  Wend. 

659),  176. 
Colestrum  v.  Railway  Co.  (33  Minn. 

516),  70. 
Ooletrain  v.  McKaine    (3  Dev.,  N. 

C.,  308),  308. 
Collins   v.   Davis    (57   Iowa,   256), 

372. 


Collins  v.  Hatch   (18  Ohio,  523,  51 

Am.  Dec.  465),  35. 
Collensworth  v.  New  Whatcom  (16 

Wash.  224,  47  Pac.  439),  317. 
Coloma  v.  Eaves    (92  U.   S.  484), 

242. 
Columbus  v.  Jacques  (30  Ga.  506), 

73. 

Columbus  W.  W.  v.  Mayor  of  Co- 
lumbus (48  Kan.  99,  25  L.  R.  A. 

534),  94,  211. 

Colville  v.  Judy  (73  Mo.  651),  106. 
Comanche  Co.  v.  Lewis  (133  U.  S. 

198),  226. 
Comer   v.   Folsom    (13  Minn.   219, 

Gil.  205),  228. 

Commissioners  v.  Allman  (142  Tnd. 
58),  320. 

Commissioners  v.  Gas  Co.   (12  Pa. 

St.  318),  151,  154. 
Commissioners  v.  Detroit  (28  Mich. 

228,  15  Am.  Rep.  202),  261. 
Commissioners  v.  Johnson  (19  Am. 

St.  96),  181. 
Commissioners  v.  Johnson    (71  N. 

C.  398),  111. 
Commissioners  v.  Loague    (129  TJ. 

S.  493),  240. 
Com'rs  v.  Mitchell   (131  Ind.  370), 

183. 
Commissioners    v.    North    Liberty 

Gas  Co.  (2  Jones,  318),  154. 
Commissioners  v.  Railway  Co.   (63 

Iowa,  297),  109. 
Commissioners    v.    Reynolds     (137 

Pa.  St.  389,  20  Atl.  Rep.  1011), 

300. 
Commissioners   v.    Shoemaker    (27 

Kan.  77),  299. 
Commissioners  v.  Shorter   (50  Ga. 

489),  234. 

Com'rs  v.  Smith  (48  Kan.  331),  299. 
Commonwealth    v.    Abraham    (156 

Mass.  57),  164. 


XXXIV 


I  ABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Com.  v.  Adams  (114  Mass.  323,  19 

Am.  Rep.  3G2),  154. 
Com.  v.  Allen  (70  Pa.  St.  465),  177. 
Com.  v.  Allegheny  Co.   (37  Pa.  St. 

277),  98. 
Com.  v.  Brothers  (158  Mass.  200), 

58. 
Com.  v.  Brooks  (109  Mass.  355) ,  78, 

154,  159,  164. 
Com.  v.  Cutter   (156  Mass.  52,  29 

N.  E.  1146),  52,  162. 
Com.  v.  Casey  (134  Mass.  194),  58. 
Com.  v.  Cole  (26  Pa.  127),  67. 
Com.  v.  Coupe  (128  Mass.  63),  67. 
Com.  v.  Davis  (140  Mass.  485),  35, 

138. 
Com.    v.    Denworth     (145    Pa.    St. 

172),  289. 


Com.  v.  Patch  (97  Mass.  221),  150, 

153. 
Com.  v.  Philadelphia    (132  Pa.  St 

238),  162,  261. 
Com.  v.  Pittsburg  (34  Pa.  St.  496), 

226,  263,  364. 
Com.  v.  Parks   (155  Mass.  531,  30 

N.  E.  174),  35,  90. 
Com.  v.  Pattou    (88  Pa.   St.  258), 

293,  295. 
Com.  v.  Plaisted   (148  Mass.  375), 

81,  156,  ISO,  259,  265. 
Com.  v.  Robertson   (5  Cush.  439), 

154. 

Com.  v.  Roy  (140  Mass.  432),  147. 
Com.  v.  Roxbury  (9  Gray,  451),  12. 
Com.  v.  Sisson  (189  Mass.  247),  49. 
Com.  v.  Stodder  (2  Cush.  5G2),  77, 


Com.    v.    Elliott    (121    Mass.    367),        154. 


15V. 


Com.   v.   Turner    (1   Cush.,   Mass., 


Corn.  v.  Fahey   (5  Cush.  408),  133.  I      493),  125,  126. 


Com.  v.  Fenton   (139  Mass.  195,  29 

N.  E.  €53),  154. 

Com.  v.  Gage  (118  Mass.  328),  154. 
Com.  v.  Halstead  (7  Atl.  Rep.  221), 

290. 

Com.  v.  Jones  (12  Pa.  St.  365),  179. 
Com.  v.  Kingsbury  (199  Mass.  542), 

77. 

Com.  v.  Look  (108  Mass.  452),  110. 
Com.  v.  Macferron  (152  Pa.  St.  244, 

25  Atl.  557),  291. 
Com.  v.  Matthews  (122  Mass.  60), 

140,  154. 
Com.  v.  Meeser    (44  Pa.   St.  341), 

256,  204,  368. 
Com.  v.  Mitchell   (82  Pa.  St.  343), 

40,  41. 

Com.  v.  McCafferty  (145  Mass.  384, 

14  N.  E.  451),  138. 
Com.  v.  Moirs    (199  Pa.  St.  534), 

291. 

Com.  v.  Mulhall  (162  Mass.  496,  44 
Am.  St.  387),  154. 

Com.   v.   Newburyport    (103  Mass. 
129),  273. 


Com.  v.  Wilkins    (121  Mass.  356), 

159. 
Com.  v.  Worcester   (3  Pick.  462), 

77,  152,  155. 
Concord   v.    Robinson    (121    U.    S. 

165),  22G,  230. 
Concordia    v.    Hagaman     (1    Kan, 

App.  35),  176. 
Condict  v.  Jersey  City  (46  N.  J.  L. 

157),  352. 
Cone  v.  Hartford   (28  Conn.  363), 

82. 
Conklin  v.  School  District  (22  Kan. 

521),  9. 
Conner  v.  Woodflll    (126  Ind.  85), 

353. 
Conservators  of  River  Tone  v.  Ash 

(10  Barnwell  &  Cr.,  349),  21. 
Converse  v.  Porter  (45  N.  H.  399) , 

307. 
Converse    v.     United     States     (21 

How.,  U.  S.,  470),  185. 
Cook  v.  Anamosa   (66  Iowa,  427), 

349. 

Cook  v.  Hall  (6  111.  579),  307. 
Cook  v.  Ma  con  (54  Ga.  468),  323. 


TABLE   OP    CASES    CITED. 


XXXV 


[REFERENCES  ARE  TO  PAGES.] 


Cook  v.  Milwaukee  (27  Wis.  191), 

347. 
Cook  Co.  v.  Industrial  School  (125 

111.  540,  8  Am.  St.  386),  88. 
Coolidge  v.   Brookline    (114  .Mass. 

592),  113. 
Coonley  v.  Albany   (57  Hun,  327), 

321. 
Cooper,   In   re  Application  of    (38 

Hun,  N.  Y.,  515),  101. 
Corbalis  v.  Newberry  Tp.   (132  Pa. 

St.  9),  349. 
Cordilla  v.  Pueblo  (34  Colo.  293), 

36. 
Corliss,  In  re   (11  R.  I.  638),  182, 

250. 
Corwin  v.  Cowan  (12  Oh.  St.  629), 


100. 


(58 


Corpus    Christ!    v.    Woessner 

Tex.  462),  249. 
Corry  v.  Foltz    (29  Ohio  St.  320), 

120. 

Costello  v.  State  (108  Ala.  45),  73. 
Costello  v.  Wyoming  (49  Ohio,  202, 

30  N.  E.  613),  287. 
Coster  v.  Albany  (43  N.  Y.  399),  79. 
Cotton  v.  New  Providence  (47  N.  J. 

L.  401),  245. 
Cotton  v.  Phillips   (56  N.  H.  220), 

185. 
Council  Bluffs  v.  K.  C.,  etc.  Ry.  Co. 

(45  Iowa,  358),  262. 
Council  Bluffs  v.  Stewart  (51  Iowa, 

385) ,  248,  249. 

County  v.  People  (11  111.  202) ,  268. 
County  Com'rs  v.  Gibson    (36  Md. 

229),  309. 
County  of   Hennepin  v.   Bartleson 

(37  Minn.  343),  116. 
County  of  Richland  v.  County  of 

Lawrence  (12  111.  1),  268. 
County    of    San    Luis    Obispo    v. 

Graves  (84  Cal.  71),  293. 
County  of  San  Luis  Obispo  v.  Hen- 

dricks  (71  Cal.  242),  133. 
Covington  v.  St.  Louis  (78  111.  548) , 

149. 


Cowdry  v.  Caneadea  (16  Fed.  Rep. 

532),  234. 
Cowert,  Ex  parte  (92  Ala.  94,  9  So. 

225),  143. 
Cowley  v.  Sunderland   (6  H.  &  N. 

565),  331. 
Crabtree  v.  Gibson    (78  Ga.  230), 

40. 
Cozzens  v.  Chicago,  etc.  Co.    (166 

111.  213),  22. 

Craig  v.  Andes  (93  N.  Y.  405),  234. 
Crampton  v.  Zabriskie   (101  U.  S. 

601),  370. 

Crane  v.   Fond  du  Lac    (16  Wis. 

196),  6,98. 

Crane  v.  West  Chicago  Park  Com- 
missioners (153  111.  348,  26  L.  R. 

A.  311),  117. 
Craw  v.  Tolono  (96  111.  255,  35  Am. 

Rep.  143),  120,  124. 
Crawford  v.  Delaware   (7  Oh.  St. 

459),  72. 
Crawford   Co.   v.   Wilson    (7   Ark. 

214),  221. 
Crawfordsville  v.  Braden  (130  Ind. 

149,  14  L.  R.  A.  268),  50,  84,  127. 
Creely  Co.  v.  Milne   (36  Neb.  301, 

19  L.  R.  A.  689),  193. 
Creighton   v.   Com.    (83  Ky.  147), 

189. 
Creighton  v.  Manson  (27  Cal.  613), 

125. 
Creighton  v.  San  Francisco  (42  Cal. 

446) ,  268,  273. 
Cricket  v.   State    (18  Ohio  St.  9), 

287,  288. 
Cristensen    v.    Fremont    (45    Neb. 

160),  50,  84. 
Cromarty  v.  Boston  (127  Mass.  329, 

34  Am.  Rep.  381),  341. 
Cromwell  v.  Sac  Co.  (96  U.  S.  51), 

240. 
Cronin  v.  People   (82  N.  Y.  318), 

133. 


XXXVI 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Cross  v.  Mayor  of  Morristown  (18 

N.  J.  Eq.  305),  128. 
Crow  v.  Oxford  Tp.  (119  U.  S.  215), 

240. 
Crowder  v.  Town  of  Sullivan  (128 

Ind.  486,  28  N.  E.  94),  253. 
Crowley  v.  Christensen   (137  U.  S. 

86),  51. 
Cuddon  v.  Eastwick  (1  Salk.  143), 

6. 
Culbertson  v.  Fulton  (127  111.  30), 

229,  252. 
Cullen,  In  re  (53  Hun,  N.  Y.,  534), 

275. 
Culver  v.   Streator    (130  111.  238), 

265,  311,  323,  324. 
Cumberland  Co.  v.  Pennell  (69  Me. 

357,  31  Am.  Rep.  284),  207. 
Cumberland  Coal  Co.   v.   Sherman 

(30  Barb.  553),  175. 
Cumberland  v.   Armstrong    (14  N. 

C.,  3  Dev.  284),  21. 
Cummins  v.  City  of  Seymour    (79 

Ind.  491,  44  Am.  Rep.  226),  315, 

354. 
Cunningham   v.   Denver    (23   Colo. 

18),  301. 
Cupp   v.   Commissioners    (19   Ohio 

St.  173),  108. 

Curtiss  v.  Hoytt  (19  Conn.  154),  67. 
Curran  v.  Boston    (151  Mass.  505, 

8  L.  R.  A.  243),  311,  329. 
Curran    v.    Holliston     (130    Mass. 

272),  44. 

Curry  v.  District  (62  Iowa,  102),  9. 
Curry  v.  Township  of  Sioux  City 

(62  Iowa,  104),  6. 
Curryer  v.  Merrill  (25  Minn.  1,  33 

Am.  Rep.  450),  87. 
Gushing  v.  Boston   (128  Mass.  330, 

35  Am.  St.  383),  339. 
Cushing  v.   The  John   Frazer    (21 

How.,  U.  S.,  184),  56. 
Cutcamp  v.  Utt  (60  Iowa,  156),  134. 
Cutler  v.  Houston  (158  U.  S.  423), 

240. 
Cutting  v.  Stone  (7  Vt.  471),  24. 


Czarnieck's  Appeal    (11  Atl.  660), 


55. 


D. 


Dabney  v.  Hudson    (68  Miss.  262, 

24  Am.  St.  276),  190. 
Daggett  v.  Colgan   (92  Cal.  53,  14 

L.  R.  A.  474),  113,  230. 
Dailey   v.    State    (8   Blackf.,    Ind., 

329),  186. 
Dakota  County  v.  Parker  (7  Minn. 

207),  218. 

Daily  v.  State  (51  Oh.  St.  348),  70. 
Daley  v.  St.  Paul  (7  Minn.  390,  Gil. 

311),  259. 
Dalrymple  v.  Whitingham    (26  Vt. 

345),  222. 

Daly  v.  Morgan  (69  Md.  460),  277. 
Daley  v.   St.  Paul    (7  Minn.  390), 

267. 
Damon  v.   Granby    (2   Pick.  345), 

172. 
Damour   v.   Lyon   City    (44   Iowa, 

276),  355. 
Danaher   v.    Brooklyn    (119  N.   Y. 

241),  352. 
Danville  v.  Danville  Water  Co.  (178 

111.  299),  83,  92,  93. 
Danville  v.   Shelton   (76  Va.  325), 

126. 
Darby  v.  Sharon  Hill   (112  Pa.  St. 

66),  279. 
Dargan  v.  Mobile  (31  Ala.  469,  70 

Am.  Dec.  505),  323. 
Darlington  v.  City  of  New  York  (31 

N.  Y.  164),  98,  322. 
Darlington  v.  Ward  (48  S.  C.  570), 

152. 

Darrow   v.   People    (8   Colo.   417), 

179,  293,  301. 
Dartmouth    College    v.    Woodward 

(4  Wheat.  518),  4,  257. 
Datz  v.  Cleveland  (52  N.  J.  L.  188, 

7  L.  R.  A.  431),  196. 
Davenport  v.  Bird  (34  Iowa,  524), 

65. 


TABLE   OF    CASES    CITED. 


XXXV11 


[REFERENCES  ARE  TO  PAGES.] 


Davenport     v.     Kleinschmidt      (6 

Mont.  502),  94,  95,  253. 
Davenport  v.   Peoria  Ins.  Co.    (17 

Iowa,  276),  97. 
Davenport  v.  Ruckman    (37  N.  Y. 

5G8),  344. 
David  v.  Portland  Water  Com.  (14 

Oreg.  9SO),  259,  267. 
Davidson  v.  Hine  (151  Mich.  294), 

258. 
Davidson  v.  New  Orleans  (96  U.  S. 

97),  108. 
Davidson  v.  Ramsey  Co.  (18  Minn. 

482,  Gil.  432),  230,  231. 
Da  vies  v.  New  York  (83  N.  Y.  207) , 

46. 
Daviess  Co.  v.  Dickinson  (117  U.  S. 

657),  227,  239,  245. 
Davis   v.   Burger    (54   Mich.   692), 

181. 
Davis  v.  Com.    (167  U.  S.  43,  162 

Mass.    510,   44   Am.    St.    389,    26 

L.  R.  A.  712),  157. 
Davis  v.  Crawfordsville    (119  Ind. 

1,  12  Am.  St.  361),  353,  354,  358. 
Davis  v.  Gaines  (48  Ark.  370),  299. 
Davis  v.  Litchfleld  (145  111.  313), 

121,  151. 
Davis  v.  Lynchburg   (84  Va.  861), 

120. 
Davis  v.  Mayor  of  New  York    (1 

Duer,  451),  176. 
Davis  v.  New  York  (14  N.  Y.  506), 

77. 
Davis  v.  Montgomery  (51  Ala.  139), 

321. 
Davis  v.  Sawyer   (133  Mass.  289), 

55. 
Davis  v.  Woolnough  (9  Iowa,  104), 

302. 
Davock  v.  Moore  (105  Mich.  120,  28 

L.  R.  A.  783),  265,  268,  273. 
Day  v.  Green  (4  Cush.  433),  90. 
Day  v.  Mt.  Pleasant  (70  Iowa,  193) , 

346. 
Dean  v.  Davis  (51  Cal.  406),  2,  21. 


Dean   v.   New   Milford  Tp.    (5  W. 

&  S.,  Pa.,  545),  337. 
Decie  v.  Brown  (167  Mass.  290,  45 

N.  E.  765),  159. 
Decker  v.   Evansville  Sub.  R.   Co. 

(133  Ind.  493),  75. 
Decker  v.  Sergeant  (125  Ind.  404), 

159. 
Decorah  v.  Bullis    (25  Iowa,  12), 

188. 
Deehan  v.  Johnson  (141  Mass.  23), 

3G3. 
Deems  v.  Baltimore    (80  Md.  164, 

26  L.  R.  A.  541),  53. 
Deering,  In  re  (93  N.  Y.  651),  101. 
Defer   v.   Detroit    (67  Mich.  346), 

358. 
Deitz  v.  City  of  Central    (1  Colo. 

332),  20. 
Delaware    Co.    v.    McClintock    (51 

Ind.  325),  227. 
Delger  v.  St.  Paul   (14  Fed.  567), 

342. 

Delphi  v.  Evans   (36  Ind.  90),  72. 
Demattos    v.    New    Whatcom     (4 

Wash.  127,  29  Pac.  933),  280. 
Demarest  v.  New  York   (147  N.  Y. 

203,  41  N.  E.  405),  193. 
Dempster  v.   People    (158  111.  36), 

124. 
Dennis  v.  Maynard    (15  111.  477), 

268. 
Denniston    v.    Clark     (125    Mass. 

216) ,  70,  71. 

Denny  v.  Spokane  (45  C.  C.  A.  164), 
Dent  v.  Cook   (45  Ga.  323),  225. 
Denver  v.  Bayer  (7  Colo.  113),  103. 
Denver  v.  Coulehan   (20  Colo.  471, 

27  L.  R.  A.  751),  277,  278. 
Denver  v.  Darrow  (13  Colo.  460,  16 

Am.  St.  215),  202,  204. 
Denver  v.  Dunsmore  (7  Colo.  328), 

336. 
Denver  v.  Williams  (12  Colo.  475), 

336. 
Depot    v.    Simmons    (112    Pa.    St. 

384),  314. 


XXXV111 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAQES.] 


Des  Moines  v.  Gil  Christ   (67  Iowa, 

210),  60,  126. 
Des  Moines  Co.  v.  Harker  (34  Iowa, 

84),  7. 
Des  Moines  Gas  Co.  v.  Des  Moines 

(44  Iowa,  505,  24  Am.  Rep.  756), 

95,  144,  146. 
Des  Plaines  v.  Poyer  (123  111.  348), 

54. 
Detroit  v.  Blackeby  (21  Mich.  84), 

335. 
Detroit  v.  Howell  Plank  R.  Co.  (43 

Mich.  140),  263. 
Detroit  v.  Martin   (34  Mich.  170), 

218. 
Detroit  v.  Osborne  (135  U.  S.  492), 

336. 
Detroit  v.  Rd.  Co.   (23  Mich.  173), 

67. 
Detroit  v.  Detroit,  etc.  R.  Co.   (23 

Mich.  173) ,  69. 
Detroit  v.  Fort  Wayne,  etc.  Ry.  Co. 

(95  Mich.  456,  20  L.  R.  A.  79), 

150,  151. 

Detroit  Citizens'  St.  Ry.  Co.  v.  De- 
troit (68  N.  W.  304,  35  L.  R.  A. 

859),  30. 
Detroit  City  Ry.  Co.  v.  Mills    (85 

Mich.  634),  74. 
De  Turk  v.  Cora.   (129  Pa.  St.  151, 

15  Am.  St.  Rep.  705,  5  L.  R.  A. 

853),  184. 
Devine  v.  Cook  Co.    (84  111.  590), 

294,  296. 
De  Vose  v.  Richmond    (18  Gratt. 

338,  98  Am.  Dec.  646),  226. 
Dew  v.  Judges  (3  Hen.  &  Munf.  1, 

3  Am.  Dec.  639),  204. 
Dewey  v.  Des  Moines  (101  la.  416), 

117,  119,  124. 
Dey  v.  Jersey  City   (19  N.  J.  Eq. 

412),  125,  135,  167,  170. 
Diamond  Match  Co.  v.  New  Haven 

(55  Conn.  510),  355. 
Dibble  v.  New  Haven    (56  Conn. 

199),  41. 


Dickinson  v.  Neeley  (30  S.  C.  587, 

3  L.  R.  A.  672),  230. 
Diehn   v.  Cincinnati    (25  Ohio   St. 

305),  329. 
Dillingham  v.  Snow  (5  Mass.  547), 

23. 
Dimock  v.  Suffield  (30  Conn.  129), 

341. 
Dingley  v.  Boston  (100  Mass.  544), 

54,  100,  103. 
Directors  v.  Houston  (71  111.  318), 

4. 
District  Attorney,  In  re   (11  Phil. 

645) ,  186. 
District    of    Columbia    v.    Cornell 

(130  U.  S.  655),  221. 
District  of  Columbia  v.  Woodbury 

(136  U.  S.  450),  313,  336,  346. 
Dively   v.   Cedar   Falls    (27   Iowa, 

227),  255. 

Dively  v.  Elmira  (51  N.  Y.  506),  64. 
Dix  v.  Dummuston    (19  Vt.  263), 

45. 
Dixon  Co.  v.  Field  (111  U.  S.  83), 

243,  244,  245,  246. 
Dobbins  v.  Northampton  (50  N.  J. 

L.  496) ,  292. 
Dobbs  v.   Stauffer    (24  Kan.  127), 

88. 
Dodd  v.  Hartford   (25  Conn.  232), 

371. 
Dodge  v.  Granger   (17  R.  I.  664), 

327. 
Doherty   v.    Braintree    (148   Mass. 

495),  349. 
Dolan  v.  New  York  (68  N.  Y.  274), 

194. 
Doland  v.  Clark  (143  Cal.  176),  252, 

253. 
Donable  v.  Harrisonburg  (104  Va. 

533,  52  S.  E.  174),  36. 
Domestic  Tel.  Co.  v.  Newark    (49 

N.  J.  L.  344),  77. 
Donaher    v.    Brooklyn     (51    Hun, 

563),  320. 
Donahoe  v.  Kansas  City   (136  Mo. 

657),  317. 


TABLE  OF   CASES   CITED. 


XXXIX 


[REFERENCES  ARE  TO  PAGES.] 


Donahoe  v.  Richards  (38  Me.  379, 

61  Am.  Dec.  256) ,  88. 
Doniell  v.   Sinclair    (L.  R.  6  App. 

Cas.  181),  217. 
Dormers  be  rger  v.  Prendergast  (128 

111.  229),  143. 
Donohue   v.   County   of  Will    (100 

111.  94),  199. 
Donovan  v.  Board  of  Education  (85 

N.  Y.  117),  329. 
Donough  v.  Dewey  (82  Mich.  309), 

22. 
Doolittle  v.  Broome  County  (18  N. 

Y.  155),  371. 
Doon  Tp.  v.  Cummins    (142  IT.   S. 

366),  250. 
Door  v.  Mickley  (16  Minn.  20,  Gil. 

8),  308. 
Dorchester  v.  Youngman  (60  N.  H. 

3S5) ,  176. 
Dosdal    v.    Olmstead    County     (30 

Minn.  96,  44  Am.  Rep.  185),  337, 

351. 
Dougherty  v.  Austin  (94  Cal.  601), 

288. 
Douglas  Co.  v.  Wallbridge  (38  Wis. 

179),  233. 
Douglass  v.  Com.  (108  Pa.  St.  559), 

40.  41. 
Douglas  v.  Niantie  Sav.  Bank   (97 

111.  228),  237. 
Douglass  v.  Virginia  City   (5  Nev. 

122),  39,  226. 
Douglass    v.    Yallup     (Burr.    722), 

309. 
Douglassville    v.     Johns     (62    Ga. 

423),  217. 
Dow  v.  Chicago    (11  Wall.,  TJ.  S., 

108),  371. 
Dowlan  v.  Sibley   (30  Minn.  430), 

6. 
Downing  v.  Mason  County  (87  Ky. 

208),  351. 

Doyle  v.  Austin  (47  Cal.  353),  122. 
Drainage   Dist.    v.    Hutchins    (234 

111.  31),  183. 


Drainage  Dist.  v.   Smith    (233  111. 

417),  183. 
Drake  v.  Hudson  River  R.  Co.    (7 

Barb.,  N.  Y.,  539),  127. 
Drew    v.    Rogers     (Cal.,    34    Pac. 

1081),  182. 
Driftwood  Co.   v.   Board    (72  Ind. 

226),  315. 
Droz  v.  Baton  Rouge  (36  La.  Ann. 

340),  373. 
Drummer  v.  Cox   (165  111.  648,  46 

N.  E.  716),  113. 
Duane  v.  McDonald  (41  Conn.  517), 

204. 
Du  Bois  v.  Augusta   (Dudley,  Ga., 

30),  148. 
Dubois  v.  Kingston  (102  N.  Y.  210), 

346. 
Duffield  v.   Williamsport    (162  Pa. 

St.  476,  25  L.  R.  A.  152),  88. 
Duffy  v.  Dubuque  (63  Iowa,  171), 

345,  346. 
Duffy  v.  New  Orleans  (49  La.  Ann. 

114),  100. 
Dullam  v.  Willson  (53  Mich.  392), 

199. 
Duluth  v.   Dibblee    (62  Minn.  18), 

115.  116. 
Duluth  v.  Mallett   (43  Minn.  204), 

203,  153,  155. 
Dunbar  v.  Augusta    (90  Ga.  390), 

60. 
Dunlop  v.  Knapp  (14  Ohio  St.  64), 

308. 
Dunnell  Mfg.  Co.  v.  Newell   (15  R. 

I.  233),  217,  218. 
Durldn,  In  re  (10  Hun,  N.  Y.,  269), 

139. 
Duty  v.  State  (9  Ind.  App.  595,  36 

N.  E.  655),  195. 
Duval    Co.    Com.    v.    Jacksonville 

(Fla.,  29  L.  R.  A.  416),  262,  268, 

269,  366. 
Dwight  v.  Springfield  (4  Gray,  107), 

372. 
Dyer  v.  Covington  Tp.   (19  Pa.  St. 

200),  222. 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


E. 


Eagle  v.  Kohn  (84  111.  292),  233. 
Earle  v.  Bd.  of  Education  (55  Cal. 

489) ,  282. 
Easterly   v.    Town    of   Erwin    (99 

Iowa,  694),  323. 
Eastern,  etc.  Ry.  Co.  v.  Central  Ry. 

Co.  (52  N.  J.  Law,  267,  31  Am.  & 

Eng.  Corp.  Cas.  262),  274. 
Easthampton    v.     County    Com'rs 

(164  Mass.  424),  103. 
East  Hartford  v.  Hartford  Bridge 

(10  How.,  U.  S.,  511),  262. 
Eastman  v.  Clackamas  County  (32 

Fed.  24),  337. 
Eastman   v.   Meredith    (36   N.   H. 

284),  12,  335,  351. 
Eastman  v.  New  York  (5  Robt.,  N. 

Y.,  389),  323. 
East  Oakland  Tp.  v.  Skinner   (94 

TJ.  S.  255),  229. 
Easton  Com.  v.  Covey  (74  Md.  262) , 

164. 
E.  Saginaw,  etc.  R.  Co.  v.  Benham 

(28  Mich.  459),  108. 
East  St.  Louis  v.  Bux  (43  111.  App. 

276) ,  58. 
East   St.  Louis  v.   East  St.  Louis 

G.  L.   Co.    (98   111.  415,  38  Am. 

Rep.  97),  39,  213,  253. 
E.   St.  Louis  v.  O'Flynn   (119  111. 

200),  79. 
East  Union  Tp.  v.  Ryan  (86  Pa.  St 

459),  222. 

Eaton  v.  Berlin  (49  N.  H.  219),  221. 
Eaton  v.  Boston,  etc.  R.  Co.  (51  N. 

H.  504),  103. 
Eaton  v.  Manitowoc  (44  Wis.  489), 

282. 
Eaton    v.    Minnough    (43    Oregon, 

465),  248. 
Eckerson  v.   Des  Moines    (137  la. 

452,  115  N.  W.  177),  18,  282,  300. 
Eckloff  v.  Dist.  of  Col.   (135  U.  S. 

240),  201. 
Eddy  v.  Granger   (19  R.  I.  105), 

320. 


Edgerley  v.  Concord  (59  N.  H.  78), 

324. 
Edgwood,  In  re  (130  Pa.  St.  348), 

279. 
Edmonds  v.  Herbrandson  (2  N.  D. 

270,  14  L.  R.  A.  725),  291,  296, 

299. 
Edmondson      v.      School      District 

(Iowa,  67  N.  W.  671),  240. 
Edwards  v.  Charlotte  R.  R.  Co.  (39 

S.  C.  472,  22  L.  R.  A.  246),  352. 
Edwards  v.  Chicago  (140  111.  440), 

121. 
Edwards  v.   Pocahontas    (47  Fed. 

268),  328. 
Edwards  v.  United  States  (103  U. 

S.  471),  198. 
Edwards  v.  Watertown    (24  Hun, 

426),  90. 
Effingham  v.  Hamilton    (68  Mich. 

523),  87. 
Egan  v.  Chicago  (5  111.  App.  70), 

129. 
Egerer  v.  N.  Y.  Central,  etc.  R.  Co. 

(130  N.  Y.  108),  80. 
Egerton  v.  Third  Municipality    (1 

La.  Ann.  435),  373. 
Ehrgott  v.   New  York    (96  N.   Y. 

273),  313,  336. 
Eichels  v.  Evansville  St.  Ry.  Co. 

(78  Ind.  261),  301. 
Eischenlaub  v.  St.  Joseph  (113  Mo. 

395),  60,  197. 

Eitel  v.  State  (33  Ind.  201) ,  297. 
Eels  v.  Am.  Tel.  &  Tel.  Co.   (143 

N.  Y.  133),  76. 
Eldora   v.   Burlingame    (62   Iowa, 

32),  143. 

Eldridge  v.  Smith  (34  Vt  482),  102. 
Electric  L.  Co.  v.  Jacksonville  (36 

Fla.  229,  30  L.  R.  A.  540),  230. 
Elkhart  v.  Lipschitz  (164  Ind.  671), 

36. 
Elizabethtown  v.  Lefler  (23  111.  90), 

137. 
Elliott  v.  Kalkaska  Sup.  (58  Mich. 

452,  55  Am.  Rep.  706),  52. 


TABLE  OF   CASES   CITED. 


Xli 


[REFERENCES  ARE  TO  PAGES.] 


Elliott  v.  Lisbon  (57  N.  H.  27),  335. 
Elliott   v.   Minneapolis    (59   Minn. 

Ill),  39. 
Elliott  v.  Philadelphia   (75  Pa.  St. 

342,  15  Am.  Rep.  581),  324. 
Ellis  v.  Lewiston  (89  Me.  60),  347. 
Ellison  v.  Rawley   (89  N.  C.  125), 

366. 
Elmendorf  v.  Mayor,  etc.  (25  Wend., 

N.  Y.,  693),  137,  138. 
Elmore  v.  Drainage  Commissioners 

(135  111.  269,  25  N.  E.  1010),  313. 
Ely    v.    Grand    Rapids    (84    Mich. 

337),  40. 
Emery  v.   Bradford    (29  Cal.  75), 

124. 
Emery  v.  Lowell    (104  Mass.  13), 

353. 
Emery  v.  Maria ville  (56  Me.  315), 

221. 
Empire  State,  The  (1  Newb.  Adm. 

541),  86. 
Emporia  v.  Volmer  (12  Kan.  622), 

65. 
English  v.  Smock    (34  Ind.  115,  7 

Am.  Rep.  215),  228. 
Enterprise  v.  State  (29  Fla.  128,  10 

So.  740),  285. 
Erie's  Appeal,   In  re    (91  Pa.   St. 

398),  249,  253. 

Erie  v.  Knapp  (29  Pa.  St.  173) ,  373. 
Erie  v.  Magill   (101  Pa.  St.  616,  47 

Am.  Rep.  739),  348. 
Ernst  v.  Morgan  (39  N.  J.  Eq.  391), 

292. 
Erskine  v.  Steele  Co.    (4  N.  Dak. 

339,  28  L.  R.  A.  645),  221. 
Esling's  Appeal    (89  Pa.  St.  205), 

130. 
Essex  (Town  of)  v.  Day  (52  Conn. 

483),  239. 
Essex  County  Ry.  Co.  v.  Lunenburg 

(49  Vt.  143),  233. 
Estelle  v.  Lake  Crystal   (27  Minn. 

243),  338. 
Eufalie  v.  McNab   (67  Ala.  588,  42 

Am.  Rep.  118),  46,  209,  211. 


Evans  v.  Job  (8  Nev.  322) ,  299. 
Evansville  v.  Bayard  (39  Ind.  450), 

301. 
Evansville  v.  Decker  (84  Ind.  325, 

43  Am.  Rep.  86),  354,  356. 
Evansville  v.   Dennett    (161  U.   S. 

434),  242. 
Evansville  v.  Evansville,  etc.  Ry. 

Co.   (15  Ind.  395),  226. 
Evansville  v.  State  (118  Ind.  426, 

4  L.  R.  A.  93),  265,  299. 
Evansville  v.   Summers    (108   Ind. 

189),  301. 
Evansville  v.  Woodbury   (60  Fed. 

718),  226. 
Everett    v.    Marquette    (53    Mich. 

450),  54. 
Everett   v.    Smith    (22   Minn.   53), 

172,  235. 
Evergreen  Cemetery  Ass'n  v.  New 

Haven  (43  Conn.  234),  103. 
Everts  v.  District  (77  Iowa,  37,  14 

Am.  St.  264),  88. 
Evison  v.  C.,  M.  &  St.  P.  Ry.  Co. 

(45  Minn.  370),  152,  155. 
Ewing  v.  Hoblizelle    (85  Mo.  64), 

293. 

Ewing  v.  State  (81  Tex.  177),  278. 
Ewing  v.  Webster  City  (103  Iowa, 

226),  145,  147. 
Eyler   v.    Commissioners    (49    Md. 

257,  23  Am.  Rep.  249) ,  338. 

F. 

Fairchild  v.   Ogdensburg,   etc.  Ry. 

Co.   (15  N.  Y.  337),  221. 
Fallbrook  Irrigation  Dist.  v.  Brad- 
ley (164  U.  S.  112),  113,  118,  229. 
Fanner  v.  Alliance   (29  Fed.  169), 

148. 
Fargusson   v.   Winslow    (34   Minn. 

384),  219. 
Farmington    River    W.    P.    Co.    v. 

County  Com'rs   (112  Mass.  206), 

112. 
Farnsworth  v.  Lime  Rock  R.  Co. 

(83  Me.  441),  301. 


xlii 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Farquar  v.  Roseburg  (18  Oreg.  271, 

17  Am.  St.  272),  336,  340. 
Farr  v.  Grand  Rapids   (112  Mich. 

99),  226. 
Farrar  v.  St.  Louis   (80  Mo.  379), 

120. 

Farris  v.  Dudley  (78  Ala.  124),  353. 
Farwell  v.  Manufacturing  Co.   (97 

Iowa,  286),  121,  124. 
Farwell  v.  Seattle  (43  Wash.  141), 

36. 
Fass  v.   Seehawer    (60  Wis.  525), 

112. 
Fath  v.  Koeppel    (72  Wis.  289,  7 

Am.  St.  867),  305. 
Faulkner  v.  Aurora    (85  Ind.  130, 

44  Am.  Rep.  1),  321. 
Fawcett   v.    Pritchard    (14    Wash. 

604),  63. 
Fearing  v.  Irvine   (55  N.  Y.  486), 

79. 
Feeley  v.  Wurstey   (25  Misc.  544), 

371. 
Felchlin,  Ex  parte  (96  Cal.  360,  31 

Am.  St.  223),  147. 
Feldman   v.   Charleston    (23   S.   C. 

57),  232. 
Fellowes  v.  New  Haven   (44  Conn. 

240),  72. 
Ferguson  v.  Davis  County  (57  Iowa, 

601),  349. 
Ferguson  v.  Halsell  (47  Tex.  421), 

126. 

Field  v.  Com.  (32  Pa.  St.  478),  202. 
Field  v.  Des  Moines  (39  Iowa,  575) , 

100,  316,  325,  326. 
Field  v.  Malster  (88  Md.  691),  201. 
Field  v.  West  Orange  (36  N.  J.  Eq. 

118),  356. 
Fife  v.  Oshkosh  (89  Wis.  540),  344, 

347. 
Fifield  v.  Phoenix    (4   Ariz.   283), 

316. 
Finch  v.  Board  of  Education    (30 

Ohio  St.  37),  329. 
Finch  v.  Riverside,  etc.  Ry.  Co.  (87 

Cal.  597),  74. 


Findlay  v.  Pittsburgh   (82  Pa.  St. 

351),  40. 
Findlay,  City  of,  v.  Pertz  (66  Fed. 

Rep.  427,  31  C.  C.  A.  340),  42, 

174,  183. 
Fire  Ins.  Co.  v.  Keeseville  (148  N. 

Y.  46),  85,  261. 
First   Municipality   v.   Cutting    (4 

La.  Ann.  335),  127. 
First   Municipality   v.   McDonough 

(2  Rob.,  La.,  244) ,  226. 
First  Nat.  Bank  v.  Ainericus    (68 

Ga.  119),  216. 
First   Nat.   Bank   v.    Saratoga   Co. 

(106  N.  Y.  488),  224. 
First  Nat.  Bank  v.  Sarles  (129  Ind. 

201,  28  Am.  St.  185),  160. 
First  Nat.  Bank  v.  Township  Clerk 

(141  Mich.  404),  183. 
Fisher  v.  Boston   (104  Mass.  87,  6 

Am.  Rep.  196),  311,  326,  352. 
Fisher    v.    Harrisburg    (2   Grant's 

Cases,  Pa.,  291),  82. 
Fisk,  Ex  parte  (72  Cal.  125),  140, 

164. 

Fisk  v.  Kenosha  (26  Wis.  23),  227. 
Fitzgerald  v.  Berlin  (64  Wis.  203), 

338. 
Fitzsimmons  v.  Brooklyn    (102  N. 

Y.  536,  7  N.  E.  878),  192. 
Flagg  v.  Hudson   (142  Mass.  280), 

341. 
Flagg  v.  School  District  (4  N.  Dak. 

30,   25   L.   R.   A.  363,   58  N.   W. 

499),  238,  242,  243. 
Flaherty,  In  re   (105  Cal.  558,  27 

L.  R.  A.  529),  78,  150,  157,  163, 

165. 
Fleischel    v.    Hightower    (62    Ga. 

324),  97. 
Fleming  v.  Guthrie  (32  W.  Va.  1,  3 

L.  R.  A.  57),  366. 
Flemrning  v.  Appleton  (55  Wis.  90) , 

209. 
Flieth  v.  City  of  Wausau  (93  Wis. 

448),  209,  362. 
Flint  v.  Webb   (25  Minn.  93),  117. 


TABLE   OF    CASES    CITED. 


xliii 


[REFERENCES  ARE  TO  PAGES.] 


Flood  v.  State  (19  Tex.  App.  584), 

148. 

Flood  v.  Leahy  (183  Mass.  232),  44. 
Flori  v.  St.  Louis   (69  Mo.  341,  33 

Am.  Rep.  504),  331. 
Florida,   etc.   R.   Co.   v.   State    (31 

Fla.  482,  20  L.  R.  A.  419),  364. 
Flyun  v.  Canton  Co.    (40  Md.  312, 

17  Am.  Rep.  603),  161,  344,  348. 
Flynu  v.  Little  Falls,  etc.  Co.   (74 

Minn.  180) ,  94. 
Flynn  v.  Taylor    (127  N.  Y.  596), 

346. 
Foltz  v.  Kerlin  (105  Ind.  221),  184 

186. 
Fones  Bros.  H.  Co.  v.  Erb  (54  Ark. 

645,  13  L.  R.  A.  353),  36,  40,  42. 
Foote  v.   Cincinnati    (11   Ohio   St. 

408,  38  Am.  Dec.  737),  257. 
Foote  v.  Lake  County  (206  111.  185), 

191. 
Fopper  v.  Wheatland  (59  Wis.  623), 

341. 
Forbes    v.     Escambria     Board    of 

Health    (28  Fla.  26,  13  L.  R.  A. 

549),  328. 
Force  v.  Town  of  Batavia   (61  111. 

100),  237. 
Ford  v.  Delta,  etc.  Co.   (164  U.  S. 

662),   121. 

Ford  v.  Thralkill  (84  Ga.  169) ,  60. 
Forman  v.  Hennepin  Co.  (64  Minn. 

371,  67  N.  W.  207),  62. 
Forsyth  v.  Atlanta    (45  Ga.  152), 

320. 
Forsyth  v.  B.  &  O.  Tel.  Co.  (12  Mo. 

App.  494),  106. 
Foster  v.  Coleman   (10  Cal.  278), 

221. 
Foster  v.  Fowler   (60  Pa.  St.  27), 

5. 

Foster  v.  Lane  (30  N.  H.  315),  9. 
Foster  v.  Police  Com'rs    (102  Cal. 

183,  41  Am.  St.  194),  144. 
Fouche  v.  Swain  (80  Ala.  153),  307. 
Fowle  v.  Alexandria  (3  Pet.,  U.  S., 

398),  320. 


Fox  v.  Ellison  (43  Minn.  41),  64. 
Fox  v.  McDonald   (101  Ala.  51,  46 

Am.  St.  98,  21  L.  R.  A.  529) ,  178. 
Foxworthy   v.    Hastings    (25    Neb. 

133),  339,  344. 
Frame  v.  Felix  (167  Pa.  St.  47,  27 

L.  R.  A.  802),  40. 
Frances  v.   Howard  Co.    (54   Fed. 

487),  246. 
Frank,  Ex  parte  (52  Cal.  606),  152 

153. 
Franklin  Bridge  Co.  v.  Wood    (14 

Ga.  80),  27. 
Franklin  Co.  v.  German  Sav.  Bank 

(142  U.  S.  93),  240. 
Frazee,  In  re  (03  Mich.  396),  131, 

156,  165,  166.* 
Frazer  v.  Warfield   (13  Md.  279), 

33. 
Freeholders  v.  Buck    (51  N.  J.  L. 

155) ,  293,  297. 
Freeholders  v.  Stevenson  (46  N.  J. 

L.  173),  286. 
Freeport    v.    Freeport    Water    Co. 

(186  111.  179),  83,  92,  93. 
Freeport  v.  Isbell  (83  111.  440),  339. 
Freeport  v.  Marks  (59  Pa.  St.  253), 

174. 
French  v.  Boston  (129  Mass.  592), 

330. 
French  v.  Kirkland  (1  Paige,  117), 

118. 
French  v.  Brunswick   (21  Me.  29), 

101. 
French    v.    Burlington     (42    Iowa, 

614),  247,  249,  255. 
French  v.  Quincy  (3  Allen,  9),  97, 

331. 

Frey  v.  Michie  (68  Mich.  323),  204. 
Friend  v.  Pittsburgh    (131   Pa.  St. 

305,  6  L.  R.  A.  636),  222. 
Friend  v.  Gilbert  (108  Mass.  408), 

44. 
Frost   v.   Beekman    (1   Johns.   Ch. 

288),  306. 
Frost  v.  Cherry   (122  Pa.  St.  417), 

54,  289,  297. 


xliv 


TABLE   OF    CASES    CITED. 


[REFERENCES 

Ft.  D.  Elec,  Lt  and  P.  Co.  v.  Fort 

Dodge  (115  Iowa,  568),  248. 
Ft.   Smith  v.   York    (52  Ark.  84), 

335. 
Ft.  Wayne  v.  Lake  Shore,  etc.  R. 

Co.   (132  Ind.  558),  96. 
Ft.  Wayne  v.  Rosenthal    (75  Ind. 

157,  39  Am.  Rep.  127),  175,  183. 
Ft.   Worth   v.   Crawford    (74   Tex. 

404),  352. 
Fuller     v.     Attorney-General     (98 

Mich.  96),  199. 
Fuller  v.  Grand  Rapids  (105  Mich. 

529,  63  N.  W.  530),  314. 
Fuller  v.  Groton  (11  Gray,  340),  44. 
Fulliam    v.    New    Muscatine     (70 

Iowa,  436,  30  N.  W.  861),  344. 
Fulton  v.  Riverton  (42  Minn.  395), 

243. 
Furbush  v.  Co.  Commrs.    (93  Me. 

117),  71. 
Furnell  v.  St.  Paul   (20  Minn.  117, 

Gil.  101),  349. 

G. 

Gabel   v.   Houston    (29  Tex.  335), 

144. 
Gadsden  v.  Mitchell  (145  Ala.  137), 

92. 
Gahagan  v.  Railway  Co.   (1  Allen, 

187),  155. 
Gale  v.  Kalamazoo   (23  Mich.  344, 

9  Am.  Rep.  80),  91,  95. 
Galena  v.  Corwith   (48  111.  423,  95 

Am.  Dec.  557),  226. 
Galesburg   v.   Hawkinson    (75   111. 

156) ,  5,  24,  277. 
Galesburg  v.  Searles  (114  111.  217), 

120. 
Gallerno  v.  Rochester  (46  U.  C.  Q. 

B.  279),  139. 
Galveston  v.  Posnainsky   (62  Tex. 

118),  7,  336. 

Galveston  &  W.  R.  Co.  v.  Galves- 
ton   (39   S.  W.   96,  36  L.   R.  A. 

33),  (90  Tex.  398),  77. 


ARE  TO  PAGES.] 

Galveston,  etc.  Ry.  Co.  v.  Harris 

(Tex.  Civ.  App.,  36  S.  W.  776), 

131. 
Galvin   v.   New   York    (112   N.   Y. 

223),  352. 
Gambel    v.    Stolte    (59    Ind.   446), 

108. 
Gamble  v.  Watkins   (7  Hun,  448), 

82. 
Gannon    v.    Hargadon    (10    Allen, 

106),  352. 
Gannaway  v.  Barricklow   (203  111. 

410),  216. 
Garden   City   v.   Abbott    (34   Kan. 

283),  147. 

Gardner,  In  re  (68  N.  Y.  467),  204. 
Gardner  v.  Newburg  Tp.  (2  Johns. 

Ch.  162),  102. 

Garrett  v.  Janes  (65  Md.  260),  78. 
Garrison  v.  Chicago  (7  Biss.  480), 

94. 
Garvey  v.  Lowell    (199  Mass.  47), 

178. 
Garvin   v.   Wiswell    (83   111.   215), 

221. 
Gas  Co.  v.  Donnelly  (93  N.  Y.  557), 

42. 
Gas  Co.  v.  San  Francisco   (9  Cal. 

453),  216. 
Gas  Co.  v.  San  Francisco   (6  Cal. 

190),  127. 

Gaskill  v.  Dudley  (6  Met.  546),  19. 
Cause    v.    Clarkesville    (5    Dillon, 

165),  215,  224. 

Gelpcke  v.  Dubuque  (1  Wall.  175), 

230. 
Gentile  v.  State  (29  Ind.  409),  299. 

George  v.  Oxford  Tp.  (16  Kan.  72), 
234. 

Gerhard  v.  Commrs.  (15  R.  I.  334) , 

79. 

German  Savings  Bank  v.  Franklin 
Co.  (128  U.  S.  526),  236,  241,  243. 

Gianfortone  v.  New  Orleans  (61 
Fed.  Rep.  64,  24  L.  R.  A.  592), 
322. 


TABLE  OF   CASES   CITED. 


xlv 


[REFERENCES  ARE  TO  PAGES. 


Gibbs  v.  Morgan  (39  N.  J.  Eq.  126), 

292. 
Gibson  v.  Huntington    (38  W.  A7a. 

177),  342. 

Gilbert-Arnold    Land    Co.    v.    Su- 
perior   (91   Wis.   353,   64  N.   W. 

999),  144. 
Gilchrist  v.  Gough    (63  Ind.  588), 

307. 
Giles  v.  School  Dist.  (31  N.  H.  304), 

9. 

Gilham  v.  Well   (64  Ga.  192),  160. 
Gillespie  v.  Lincoln  (35  Neb.  34,  16 

L.  R.  A.  349) ,  327. 
Gillespie  v.  Rogers  (146  Mass.  612), 

307. 
Gillison  v.  Charleston    (16  W.  Va. 

282,  37  Am.  Rep.  763),  356. 
Gilluly  v.  Madison   (63  Wis.  518), 

356,  358,  359. 
Gillrie  v.  Lockport  (122  N.  Y.  403), 

347,  350. 
Gilkey  v.  Town  of  How  (105  Wis. 

41),  22. 
Gilman  v.  Laconia   (55  N.  H.  130, 

20  Am.  Rep.  175) ,  353,  358. 
Gilman    v.    Sheboygan     (2    Black, 

510) ,  271. 

Gilmore  v.  Holt  (4  Pick.  257) ,  145. 
Gilson  v.  Dayton    (123  U.  S.  59), 

241. 
Giozza  v.  Tiernan  (148  U.  S.  657), 

159. 
Girard  v.  Omaha,  etc.  Ry.  Co.  (14 

Neb.  270),  108. 
Girard  v.  Philadelphia  (7  Wall.,  U. 

S.  1),  263. 

Girard  Life  Ins.  Co.  v.  Phila.   (88 

Pa.  393),  261. 
Gladstone  v.  Throop  (71  Fed.  341, 

37  U.  S.  App.  481),  229. 

Gladwin  v.  Ames  (30  Wash.  608), 
248. 

Glantz  v.  Bend  (106  Ind.  305),  340. 
Glass  Co.  v.  Ashbury  (49  Cal.  571) , 
126. 


Glasgow  v.  St.  Louis  (107  Mo.  198), 

79. 
Glasscock  v.  Lyons   (20  Ind.  1,  83 

Am.  Dec.  299),  194. 
Glen  Ridge  v.  Stout   (58  N    J.  L. 

598,  35  Atl.  Rep.  913),  6. 
Goddard's  Case    (16  Pick.  504,  23 

Am.  Dec.  259),  161. 
Goddard  v.  Hart  well    (33  Am.  Si. 

373),  312. 
Goddard    v.    Seymour     (30    Conn. 

349),  218. 
Goesler  v.  Georgetown  (6  Wheat., 

U.  S.  597) ,  92. 
Goff  v.  Nolan   (10  How.  Pr.  323), 

176. 

Gooch  v.  McGee  (83  N.  C.  59),  5. 
Goodale   v.    Fennell    (27   Ohio   St. 

426),  271. 
Goodfellow  v.  New  York    (100  N. 

Y.  15),  339,  344. 
Goodnow  v.  Ramsey  Co.   (11  Minn. 

31),  221,  224,  225. 
Goodtitle  v.  Alker   (1  Burr,  133), 

70. 
Goose  River  Bank  v.  Willow  Lake 

School  Tp.  (IN.  Dak.  26),  210. 
Goshen  v.  England   (119  Ind.  368, 

5  L.  R.  A.  253),  336. 
Goshen  v,  Myers    (119  Ind.   196), 

348. 
Gould  v.  Topeka  (32  Kan.  485),  339, 

355. 
Govern  v.  State  (47  N.  J.  L.  368,  9 

Atl.  577),  293. 
Governor   v.   Dodd    (81   111.   163), 

309. 
Graham  v.  Albert  Lea    (48  Minn. 

201,  SON.  W.  1108),  344. 
Graham  v.  Carondelet  (33  Mo.  262) , 

136. 
Graham  v.   Conger    (85  Ky.  582), 

121. 

Graham  v.  Roberts  (200  Mass.  151) , 
18. 

Granby  v.  Thurston  (23  Conn.  416), 
279. 


xlvi 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Grand  Rapids  v.  Blakely  (40  Mich. 

367),  216. 
Grand  Rapids  v.  Braudy  (105  Mich. 

670,  32  L.  R.  A.  116),  57,  153,  160, 

161. 
Grand  Rapids  v.  Newton  (111  Mich. 

48),  162. 
Grand  Rapids  B.  Co.  v.  Jarvis  (30 

Mich.  308) ,  103,  105. 
Grand  Rapids,  etc.  R.  Co.  v.  Heisel 

(38  Mich.  62),  72,  74,  75. 
Granger  v.  French  (152  Mich.  356), 

192. 
Grank  v.  Stillwater  (35  Minn.  242), 

314. 
Grant  v.  Davenport  (36  Iowa,  396), 

114,  249,  253,  255. 
Grant  v.  Erie  (69  Pa.  St.  420,  8  Am. 

Rep.  272),  318,  325. 
Grant  Co.   v.   Lake  Co.    (17  Oreg. 

453),  248. 
Gratiot  v.  Mo.  Pac.  Ry.  Co.    (116 

Mo.  450,  18  L.  R.  A.  189) ,  155. 
Graves   v.    Saline   Co.    (161   IT.    S. 

359),  237. 
Gray  v.  McWilliams   (98  Cal.  157, 

21  I,.  R.  A.  593) ,  352. 
Great   Falls   Bank   v.   Farmington 

(41  N.  H.  32),  223. 
Green  v.  Cape  May  (41  N.  J.  L.  45), 

61,  127,  128. 
Green  v.  Harrison  County  (61  Iowa, 

311),  337. 
Green   v.   Reading    (9   Watts,   Pa., 

382),  359. 
Green  v.   Spenser   (67  Iowa,  410), 

209. 

Green  v.  Savannah   (6  Ga.  1),  52. 
Green  v.  Ward  (82  Va.  324) ,  89. 
Greencastle  v.  Thompson  (168  Ind. 

493),  51. 
Greensborough    v.    Ehrenruch    (80 

Ala.  579,  60  Am.  Rep.  130),  52, 

54,  160. 

Greenville  W.  W.  Co.  v.  Greenville 
(70  Miss.  609),  95. 


Greenwood   v.    Louisville    (13   Ky. 

226,  26  Am.  Rep.  263),  326,  336. 
Gregory  v.  Bridgport  (41  Conn.  76), 

44. 
Grenada  Co.  v.  Brogden  (112  U.  S. 

261,   7   Am.   &   Eng.   Corp.   Cas. 

329),  228. 
Gridley    v.    Bloomington     (88    111. 

554,  30  Am.  Rep.  566),  78,  161. 
Griffin  v.  Inman  (57  Ga.  370),  235. 
Grim  v.  Weisenberg  School  District 

(57  Pa.  St.  433) ,  217,  218. 
Grimes  v.  Keene    (52  N.  H.  335), 

332. 
Grimmell  v.  Des  Moines  (57  Iowa, 

144) ,  118,  127. 
Griswold   v.    Bay   City    (35   Mich. 

452),  71. 
Grogan  v.  San  Francisco   (18  Cal. 

590),  261,  275. 
Grossenbach  v.  Milwaukee  (65  Wis. 

31,  56  Am.  Rep.  614),  347. 
Grossman  v.  Oakland    (30  Oregon 

478),  54. 

Grousch  v.  State  (42  Ind.  547),  164. 
Grove  Street,  In  re  (61  Cal.  438), 

106. 
Grube  v.  St.  Paul   (34  Minn.  402), 

326. 
Grumon  v.  Raymond   (1  Conn.  40, 

6  Am.  Dec.  200),  315. 
Gude  v.  Mankato   (30  Minn.  256), 

349. 
Gne  v.  Canal  Co.   (24  How.,  U.  S., 

257),  5. 

Guerrero,  In  re  (69  Cal.  88),  165. 
Guild  v.  Chicago  (82  Til.  472),  300. 
Guilder  v.  Otsego  (20  Minn.  74), 

273. 
Guilford  v.  Supervisors    (18  Barb. 

615,  13  N.  Y.  144),  275,  276. 
Gullikson   v.   McDonald    (62  Minn. 

278),  323,  324,  328. 
Gundling  v.  Chicago  (176  111.  340), 

52. 
Gundling  v.  Chicago,  177  U.  S.  183) , 

52. 


TABLE  OP   CASES   CITED. 


xlvii 


[REFERENCES 

Gunn,  In  re  (9  L.  R.  A.  519),  190. 
Gurnee  v.  Chicago  (40  111.  165),  117. 
Guthrie  v.  Territory  (1  Okla.  188, 

21  L.  R.  A.  841),  367. 
Gutzweller  v.  People  (14  111.  142), 

270. 
Guy  v.  Washburn    (23  Cal.  Ill), 

218. 

H. 

H.,  etc.  v.  Norfolk  (6  Allen,  Mass., 

353),  273. 
Haag  v.  Board  (60  Ind.  511,  28  Am. 

Rep.  654),  315. 
Haag  v.  Vanderburg  Co.   (60  Ind. 

511),  315. 
Hafford  v.  New  Bedford  (16  Gray, 

297),  311. 
Hager   v.   Reclamation   Dist.    (Ill 

U.  S.  701),  108,  118. 
Hager  v.  Supervisors  (47  Cal.  222), 

118. 
Hagerston  v.  Sehner  (37  Md.  180) , 

323. 
Hagerstown    v.    Witrner     (86    Md. 

293),  35. 
Halgren    v.    Campbell     (82    Mich. 

255,  9  L.  R.  A.  408),  201,  204. 
Haldemau  v.  Penn.  Ry.  Co.  (50  Pa. 

St.  425),  101. 
Haley  v.  Boston   (191  Mass.  291), 

352,  358. 

Hall  v.  Bray  (51  Mo.  288),  299. 
Hall  v.  Hough  ton  (8  Mich.  451),  84. 
Hall  v.  Lauderdale  (46  N.  Y.  70), 

208. 

Hall  v.  Ray   (40  Vt.  576,  94  Am. 
Dec.  440),  171. 

Hallenbeck  v.  Hahn  (2  Neb.  377), 
230. 

Halsey  v.   Rapid  Tr.   St.  Ry.  Co. 

(47  N.  J.  Eq.  380,  20  Atl.  859), 

74,    127. 

Ham  v.  Board  (142  Mass.  90),  202. 
Hamden  v.  Rice    (24  Conn.  350), 

46. 


ARE  TO  PAGES.] 

Hamlin  v.  Kassafer  (15  Oreg.  456), 

187,  189,  190. 
Ham!  in  v.  Meadville  (6  Neb.  227), 

225,  257. 
Hamm  v.  New  York  (70  N.  Y.  460), 

329. 
Hammer  v.  State  (44  N.  J.  L.  667), 

293,  298. 
Hammett  v.   Philadelphia    (65  Pa. 

St.  146),  116,  117. 
Hampshire  Co.  v.  Franklin  Co.  (16 

Mass.  75),  280. 
Hancock    v.    Chicot   Co.    (32   Ark. 

575),  221. 
Hancock  v.  Hazzard  (12  Cush.  112, 

59  Am.  Dec.  171),  206. 
Hand  v.  Brookline  (126  Mass.  324), 

332. 

Hand  v.  Newton  (92  N.  Y.  88),  96. 
Handley   v.    Howe    (22   Me.   562), 

307. 
Haniford  v.  Kansas  City  (103  Mo. 

172),  336. 
Hanlin  v.  Chicago,  etc.  Co.  (61  Wis. 

515),  352. 
Hannibal  v.  Fauntleroy   (105  U.  S. 

408),  235. 
Hannibal   v.   Marion   Co.    (69   Mo. 

571),  257. 
Hanson  v.  Vernon    (27  Iowa,  28, 

53),  3. 
Hardenbrock  v.  Town  of  Legonier 

(95  Ind.  70),  148. 
Hardy  v.  McKinney  (107  Ind.  367), 

112. 
Harmon  v.  Chicago   (110  111.  400), 

55,  148. 
Harmon  v.  St.  Louis  (137  Mo.  494), 

320,  321. 
Harper  v.  Milwaukee  (30  Wis.  3G5) , 

356. 
Harriman  v.  Howe  (78  Hun,  2SO), 

67. 
Harrington  v.  Buffalo    (121  N.  Y. 

147),  347. 
Herrington  v.  Lansingburg  (110  N. 

Y.  145),  314. 


xlviii 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Harrington  v.  Town  of  Plain  View 

(27  Minn.  224,  229,  6  N.  W.  777), 

7,  228. 

Harris  v.  Atlanta  (G2  Ga.  290),  323. 
Harris  v.  School  District  (28  N.  H. 

58),  8. 
Harris  v.  State  (72  Miss.  960,  33  L. 

R.  A.  85),  171. 
Harrisburg  v.  Segelbauni   (151  Pa. 

St.  172),  116. 
Harrison  v.  Baltimore  (1  Gill,  Md., 

264),  52. 
Harshman  v.  Bates  (92  U.  S.  569), 

235. 
Hart    v.    Bridgeport    (13    Blatchf. 

289),  322. 
Hart  v.  Murray  (48  Ohio  St.  605) , 

288. 
Hart  v.  Red  Cedar  (63  Wis.  634), 

338. 
Hartford  v.  Talcott  (48  Conn.  525), 

348. 
Hartford  County  v.  Wise   (75  Md. 

38),  348. 
Hartford  v.  Haslen  (76  Conn.  599), 

266. 
Harvey  v.  Hillsdale  (86  Mich.  330, 

49  N.  W.  141),  314. 
Harwood  v.  Marshall   (9  Md.  83), 

256,  204,  366. 

Harwood  v.  Shaw  (126  111.  53),  112. 
Harwood  v.  Wentworth  (162  U.  S. 

547),  282. 
Hasbroucke  v.  Milwaukee  (21  Wis. 

219),  275. 
Haskell,  In  re  (112  Cal.  412,  32  L. 

R.  A.  527),  131,  143. 
Haskell  v.  Bartlett   (34  Cal.  281), 

139. 
Hatfield  v.  Strauss  (189  N.  Y.  208), 

69. 
Hathaway  v.  Hinton   (1  Jones,  N. 

C.,"243),  309. 
Haupt's  Appeal    (125  Pa.   St.  211, 

3  L.  R.  A.  536),  85. 
Haus  v.  Bethlehem  (134  Pa.  St.  12, 

19  Atl.  437),  359. 


Havens  v.  Lathene  (75  N.  C.  505), 

206. 
Hawes    v.    Chicago    (158    111.    653, 

30  L.  R.  A.  225),  151,  152. 
Hawkins  v.  Carroll  Co.    (50  Miss. 

735),  227. 
Hawkins  v.  Huron   (2  U.  P.  C.  C. 

P.  72),  131. 
Hawley    v.    City    of    Atlantic    (92 

Iowa,  172,  60  N.  W.  519),  342. 
Hayden  v.   Noyes    (5  Conn.   391), 

150,  170. 
Hayes,  Ex  parte   (98  Cal.  555,  20 

L.  R.  A.  701),  159. 
Hayes   v.    Douglass   Co.    (92   Wis. 

429,  31  L.  R.  A.  ?13),  230. 
Hayes  v.  Holly  Springs  (114  U.  S. 

120),  233. 
Hayes   v.   Hyde   Park    (153   Mass. 

514,  12  L.  R.  A.  249),  340. 
Hayes  v.  Mich.  Central  R.  Co.  (Ill 

U.  S.  228),  78. 
Hayes  v.   Oil  City    (Pa.   St.  887), 

195. 
Hayes  v.  Oshkosh  (33  Wis.  314,  14 

Am.  St.  760),  324,  326. 
Hayes  v.  Porter  (22  Me.  371),  309. 
Hayford  v.  Bangor  (102  Me.  340), 

104,  105. 
Ilayne  v.  Cape  May    (50  N.  J.  L. 

55),  152. 

Haynes,  In  re  (54  N.  J.  L.  6),  295. 
Haynes  v.  Thomas  (7  Ind.  38),  80. 
Hayward  v.  School  District  (2 

Cush.  419),  170. 
Haywood  v.  Buffalo  (14  N.  Y.  534), 

370. 
Hazzard  v.  Council  Bluffs  (79  Iowa, 

106),  358. 
Head  v.  Curators  (47  Mo.  220),  3, 

178. 
Healdsburg   v.   Mulligan,   113   Cal. 

205),  206,  207. 
Health  Dept.  v.  Rector  (145  N.  Y. 

32,  27  L.  R.  A.  710),  49. 
Heath  v.  Des  Moines,  etc.  R.  Co. 

(61  Iowa,  11),  69. 


TABLE  OP   CASES   CITED. 


xlix 


[REFERENCES  ARE  TO  PAGES.] 


Health  v.  Fond  du  Lac   (63  Wis. 

228),  356. 
Heeney  v.  Sprague  (11  R.  I.  456,  23 

Am.  Rep.  502),  145,  348. 
Heilbron  v.  City  of  Cuthbert   (96 

Ga.  312),  230. 
Heine  v.  Levee  Com'rs   (19  Wall., 

U.  S.,  655),  364. 
Heinrich  v.  St.  Louis  (125  Mo.  424), 

79,  80. 
Heiser  v.   New   York    (104   N.   Y. 

68),  360. 
Heiskell  v.  Baltimore  (65  Md.  125, 

57  Am.  Rep.  308) ,  172. 
Heiskell  v.  Mayor   (65  Md.  125,  4 

Atl.  Rep.  116),  32. 
Heland  v.  Lowell   (3  Allen,  Mass., 

407),  145. 
Helena  Consol.  Wat.  Co.  v.  Steele 

(49  Pac.  382,  37  L.  R.  A.  412), 

86. 
Heller  v.  Sedalia   (53  Mo.  159,  14 

Am.  Rep.  444),  325. 
Heller  v.  Stremmel   (52  Mo.  309), 

6,  9. 
Henderson  v.  Davis  (106  N.  C.  88) , 

64. 
Henderson     v.     Minneapolis      (32 

Minn.  319),  72,  354,  360. 
Henkel  v.  City  of  Detroit  (49  Mich. 

249),  59,  311. 
Henkes   v.   Minneapolis    (42  Minn. 

530),  347. 

Henley  v.  Lyme  (5  Bing.  91),  177. 
Hennen,  In  re  (13  Pet.  230),  199, 

200. 
Henry  v.  Mayor  of  Macon  (91  Ga. 

268),  59. 

Hensley  v.  People  (82  111.  544),  229. 
Herschoff  v.  Beverly  (43  N.  J.  L. 

139),  63. 
Herzo  v.   San  Francisco    (33  Cal. 

134),  126. 

Hess  v.  Pegg  (7  Nev.  23),  299. 
Hewitt's  Appeal    (88  Pa.  St.  55), 

277. 


Hewitt  v.  School  Dist.  (94  111.  528) , 

226. 
Higby  v.  Bunce  (10  Conn.  436),  137, 

139. 
Higgins  v.  San  Diego  W.  Co.  (118 

Cal.  524),  211. 
Higginson    v.    Nahant    (11    Allen, 

532),  102. 
Hill  v.  Boston  (122  Mass.  344),  12, 

335,  336,  351,  358. 
Hill   v.    Boyland    (40   Miss.    618), 

131. 
Hill  v.  Charlotte  (72  N.  C.  55,  21 

Am.  Rep.  451) ,  321. 
Hill   v.    Easthampton    (140   Mass. 

381),  230. 
Hill  v.  Fond  du  Lac  (56  Wis.  242), 

339. 
Hill  v.   Goodwin    (56  N.   H.  441), 

368. 

Hill  v.  McNichol  (76  Me%315),  307. 
Hill  v.  Memphis   (134  U.  S.  198), 

225,  226. 
Hill  v.  Rensselaer  County  (119  N. 

Y.  344),  323. 
Hill  v.   Territory    (Wash.,  7  Pac. 

Rep.  63),  182. 
Hinchman  v.  Paterson  Horse  R.  Co. 

(17  N.  J.  Eq.  75),  72,  73,  74. 
Hinck  v.  Milwaukee  (46  Wis.  565), 

314. 
Hine  v.  New  Haven  (40  Conn.  478), 

163. 

Hine  v.  Robbins  (8  Conn.  347),  307. 
Hines  v.  Charlotte   (72  Mich.  278, 

1  L.  R.  A.  844),  311. 
Hines  v.  Lockport  (50  N.  Y.  236), 

342. 
Hinze  v.  People  (92  111.  406),  181, 

301. 
Hitchcock  v.  Galveston   (96  U.  S. 

341),  89,  211,  212. 
Hitchins  v.  Frostburg  (68  Md.  100), 

356,  358. 
Hoadley  v.  San  Francisco  (124  U. 

S.  639),  96. 
Hobbs  v.  Lowell  (19  Pick.  405),  67. 


TABLE  OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Hoboken  v.  Gear  (27  N.  J.  L.  267), 

140. 
Hoboken  Land,  etc.  Co.  v.  Hoboken 

(36  N.  J.  L.  540),  70,  79. 
Hockett  v.  State  (105  InoL  250) ,  5. 
Hodges  v.  Buffalo   (2  Denio,  110), 

43,  82,  230,  317. 
Hodgman  v.  Chicago,  etc.  Ry.  Co. 

(20  Minn.  48),  228,  233,  236. 
Hoffmann    v.    Greenwood   Co.    (23 

Kan.  307),  195. 
Hoagland  v.  Sacramento   (52  Cal. 

142),  273,  275. 
Hoglan  v.  Carpenter  (4  Bush,  Ky., 

89),  186. 
Houlden  v.  Smith  (3  Moore,  P.  C.  C. 

75),  305. 
Holland  v.  Baltimore  (11  Md.  186), 

371. 
Hollandbeck  v.  Winnebago  County 

(95  111.  148,  35  Am.  Rep.  151), 

330. 
Hollenbeck    v.    Marshall  town    (62 

Iowa,  21),  65. 
Holliday  v.  Frisbee  (15  Cal.  630), 

98. 
Holmes    v.    Shreveport    (31    Fed. 

Rep.  113),  226. 
Holt  v.  Denny  (118  Ind.  449),  258, 

264,  265. 
Holt  Co.  v.  Scott  (53  Neb.  176),  181, 

187,  188. 
Hoi  ton  v.  Milwaukee  (31  Wis.  27), 

115. 
Holwedell,  Ex  parte  (74  Mo.  395) , 

145. 

Honolulu  Rapid  Transit  Co.  v.  Ha- 
waii  (211  TJ.  S.  282),  104. 
Hood  v.  Lynn    (1  Allen,  103),  34, 

82,  229. 

Hoole  v.  Kincaid  (16  Nev.  217) ,  40. 
Hooper   v.    Emery    (14   Me.   375), 

14. 
Hope  v.  Alton    (214  111.  102),  39, 

211. 
Hope  v.  Dederick  (8  Humph.,  Tenn., 

1,  47  Am.  Dec.  597),  19. 


Hope  v.  Henderson  (4  Dev.  N.  C. 

L.  1),  198. 
Hopkins  v.  Mayor  (4  M.  &  W.  461, 

640),  144. 
Hopkins  v.  Ogden  City  (5  Utah,  390, 

16  Pac.  596),  341. 
Horner  v.  Coffey  (25  Miss.  434),  98. 
Horton  v.  Mobile  Com'rs   (43  Ala. 

598),  281. 
Hotchkiss  v.  Marion  (12  Mont.  218, 

29  Pac.  821) ,  251. 
Hough  v.  Cook  (44  Iowa,  639),  179. 
House  v.  State  (41  Miss.  737),  164. 
House  Roll  No.  284,  In  re  (31  Neb. 

505),  232. 
Houseman   v.   Com.    (100  Pa.   St. 

222),  200. 
Houseman    v.    Madison    (85    Wis. 

187),  347. 
Houston  v.  Houston  C.  Ry.  Co.  (84 

Tex.  581),  91. 
Hover  v.  Barkhoff   (44  N.  Y.  113, 

125),  309. 

Hovey  v.  Mayo  (43  Me.  322),  72. 
Howard  v.  Huron    (5  S.  D.  539), 

240,  364,  365. 

Howard  v.  State  (47  Ark.  431),  67. 
Howard  County  Com'rs  v.  Legg  (93 

Ind.  523,  47  Am.  Rep.  390),  337. 
Howe  v.  Keeler  (27  Conn.  538),  42. 
Howe  v.  Plainfield  (37  N.  J.  L. 

145),  145. 
Howe  v.  West  End  St.  Ry.  Co.  (167 

Mass.  46),  74. 

Howe  v.  White  (49  Cal.  658),  307. 
Howland  v.  Wright  Co.  (82  Iowa, 

164),  191. 

Howsman  v.  Trenton  Water  Works 

(119  Mo.  304,  23  L.  R.  A.  146), 

325. 
Hoyt  v.  Danbury   (69  Conn.  341), 

344. 
Hoyt  v.  East  Saginaw    (19  Mich. 

39),  115,  133. 
Hoyt  v.  Hudson  (27  Wis.  656,  9  Am. 

Rep.  473),  353. 


TABLE  OF   CASES   CITED. 


li 


[REFERENCES  ARE  TO  PAGES.] 


Hubbard  v.  Concord  (35  N.  H.  52, 

69  Am.  Dec.  520),  339. 
Hubbard  v.  Lynden,  48  Wis.*  674), 

221. 
Hubbard  v.  Switzer   (47  la.  681), 

309. 
Hubbell  v.  Viroqua    (67  Wis.  343, 

58  Am.  Rep.  866),  321. 
Hudson  v.  Marlborough  (154  Mass. 

218,  28  N.  E.  147),  341. 
Huesing  v.   Rock   Island    (128  111. 

465),  15  Am.  St.  129),  30,  52. 
Huey  v.  Waldrop    (141  Ala.  318), 

364. 
Huff  mire  v.  Brooklyn   (101  N.  Y. 

136),  356. 
Hughes  v.  Lawrenceburg    (18  Ky. 

Law,  550),  328. 
Hughes  v.  Milligan   (42  Kan.  396, 

22  Pac.  313),  299. 
Hughes  v.  Monroe  County  (147  111. 

49),  32S. 
Hughes    v.   Recorder's    Court    (75 

Mich.  574,  4  L.  R.  A.  863),  60. 
Hughson  v.  Crane   (115  Cal.  404), 

229. 
Ruling  v.  Raw  Valley  R.  Co.   (130 

U.  S.  559),  108. 
Hungerford  v.  Hartford  (39  Conn. 

279),  118. 
Hunneman  v.  Fire  District  (37  Vt. 

40),  21. 
Hunt  v.  New  York  (109  N.  Y.  134), 

338. 
Hunter  v.  Chandler  (45  Mo.  452), 

194. 
Hunter  v.  Farren  (127  Mass.  481), 

55. 
Huron  v.  S.  W.  Bank  (86  Fed.  272) , 

242. 
Hurst  v.  Warner   (102  Mich.  238, 

26  L.  R.  A.  484),  52. 
Hurley  v.  Mississippi,  etc.,  Co.  (34 

Minn.  143),  68. 

Huston  v.  Council  Bluffs  (Iowa,  69 
N.  W.  1130,  36  L.  R.  A.  211),  347. 


Huston  v.  Fort  Atkinson   (56  Wis. 

350),  71. 
Kutts    v.    Tindall    (6    Rich.    Law, 

396),  67. 
Ilutchings  v.  Sullivan  (90  Me.  131, 

37  Atl.  883),  344. 
Hutchius    v.    Mt.    Vernon    (40   111. 

App.  19),  141. 
Hutchinson  v.  Ypsilanti  (103  Mich. 

12,  61  N.  W.  279),  347. 
Hutt  v.  Chicago  (132  111.  352),  121. 
Hyde  v.  Franklin  Co.  (27  Vt.  185), 

221. 
Hydes  v.   Joyes    (4  Bush,  464,  96 

Am.  Dec.  311),  91. 

I. 

Inchbold  v.  Robinson  (L.  R.  4  Ch. 

App.  388),  55. 
Illinois  v.  Canal  Co.   (2  Dill.  C.  C. 

70),  86,  91. 
Illinois  Cent.  R.  Co.  v.  Bloomington 

(76  111.  447),  147. 
Illinois    Cent.    R.    Co.    v.    Decatur 

(126  111.  92,  1  L.  R.  A.  613),  122. 
Illinois  Cent.  R.  Co.  v.  People  (143 

111.  434,  19  L.  R.  A.  119),  362. 
Illinois  Cent.  R.  Co.  v.  People  (161 

111.  244),  124. 
Illinois  Trust  &   Savings  Bank  v. 

Arkansas  City  (76  Fed.  Rep.  271, 

40  U.   S.  App.  257,  34  L.   R.  A. 

518),  94,  95,  126,  128,  211,  213, 

261. 
Illinois  &  M.  Canal  v.  Chicago,  (12 

III.  403),  122. 
Imlay  v.  Union  Branch  R.  Co.  (26 

Conn.  246),  74. 
Indianapolis    v.    Bieler    (138    Ind. 

30),  56. 
Indianapolis  v.  Croas   (7  Ind.  9), 

80. 
Indianapolis    v.    Huffer    (30    Ind. 

235),  355. 
Indianapolis    v.    Imbery    (17    Ind. 

175),  127,  129. 


lii 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Indianapolis    v.    Indianapolis,    etc. 

(66  Ind.  396) ,  92. 
Indianapolis  v.  Indianapolis  Home, 

etc.  (50  Ind.  215),  268. 
Indianapolis    v.    Miller     (27    Ind. 

394),  128. 
Indianapolis   v.    Wann    (144    Ind. 

175,  4  N.  E.  901,  31  L.  R.  A.  743) , 

93,  253. 
Indianola  v.  G.  W.  T.  &  P.  R.  Co. 

(56  Tex.  594),  77. 
Ingaman  v.  Chicago  (78  111.  405), 

150. 
Inhabitants  of  Quincy  v.  Kennard 

(151  Mass.  563),  165. 
Inhabitants    v.    Wood    (13    Mass. 

193),  21. 

Inman  v.  Tripp  (11  R.  I.  520) ,  353. 
International  Bank  v.  Franklin  Co. 

65  Mo.  105),  223. 

Interstate  V.  B.  &  P.  Co.  v.  Phila- 
delphia (164  Pa.  St.  477),  40. 
Iowa  Land  Co.  v.  Carroll  (39  Iowa, 

151),  6. 
Iowa  Land  Co.  v.  County  of  Sac 

(39  Iowa,  124),  126. 
Iron  Mt.  R.  Co.  v.  Bingham    (87 

Tenn.  522),  75. 
Irvine  v.  Wood   (51  N.  Y.  224,  10 

Am.  Rep.  603),  78. 
Israel   v.   Jewett    (29  Iowa,  475), 

111. 
Ivanhoe  v.  Enterprise  (35  L.  R.  A. 

58,  29  Oreg.  245),  115,  124. 
Iverson    v.    Indianapolis,    etc.    (39 

Fed.  735),  87. 
Ives  v.  E.  Haven  (48  Conn.  272), 

108. 

Ives  v.  Hulet  (12  Vt.  314),  208. 
Ivory  v.  Deerpark  (116  N.  Y.  476), 

338,  342. 

J. 

Jackson  v.   Hathaway    (15  Johns. 

447) ,  71. 
Jackson  v.  Michigan  (9  Mich.  Ill) , 

372. 


Jackson  v.  Newman  (59  Miss.  385, 

42  Am.  Rep.  3G7),  57. 
Jackson   v.    People    (9   Mich.   11), 

372. 
Jackson  Co.  v.  Brush  (77  111.  59), 

233. 
Jackson  Co.  Com'rs  v.  Lieneberger 

(3  Mont.  231),  206. 
Jackson  Co.  H.  R.  Co.  v.  Interstate, 

etc.  (24  Fed.  306),  95. 
Jacksonville  v.  Electric  Light  Co. 

(36  Fla.  229,  20  L.  R.  A.  540),  85. 
Jacksonville    v.    Lambert    (62    111. 

519),  356. 
Jacksonville   v.    Ledwith    (26   Fla. 

163),  126,  133,  144. 
Jacksonville,  etc.  Ry.  Co.  v.  Adan 

(33  Fla.  608,  24  L.  R.  A.  272), 

107. 
Jacksonville,  etc.  Ry.  Co.  v.  Walsh 

(106  111.  253),  109. 
Jacksonville  Elec.  L.  Co.  v.  Jack- 
sonville (30  L.  R.  A.  540),  85. 
Jacksonville   R.   R.   Co.   v.   Virden 

(104  111.  339),  234. 
Jameson  v.  Denny    (118  Ind.  382, 

4  L.  R.  A.  79) ,  258,  265,  267. 
Jameson  v.  People  (16  111.  257,  63 

Am.  Dec.  304),  23,  24. 
Jefferson  v.  Chapman  (127  111.  438), 

314. 
Jefferson  Co.  v.  Arrighi   (54  Miss. 

668),  224. 
Jeffries    v.    Harrington    (11    Colo. 

191),  179. 

Jeffries  v.  Rowe  (63  Ind.  592),  182. 
Jenks  v.  Township  (45  Iowa,  554), 

373. 
Jenks  Tp.  v.  Sheffield  Tp.  (135  Pa. 

St.  400,  18  Atl.  1004),  282. 
Jenny  v.  Brooklyn  (120  N.  Y.  164), 

352. 

Jensen  v.  Board  (47  Wis.  298),  274. 
Jensen    v.    Waltham     (166    Mass. 

344),  314. 
Jewell  v.  Gilbert   (64  N.  H.  13,  10 

Am.  St.  357),  187. 


TABLE   OF    CASES    CITED. 


liii 


[REFERENCES  ARE  TO  PAGES.] 


Jewett  v.   New   Haven    (38   Conn. 

368,  9  Am.  Rep.  382),  326. 
Jewhurst  v.   Syracuse    (108  N.   Y. 

303),  338,  344. 
John  v.  Mayor    (7  Eng.  Rul.  Gas. 

278),  58. 
Johnson   v.   Indianapolis    (16   Ind. 

227),  24. 
Johnson  v.  Mayor  of  Croyden  (1886, 

16  Q.  B.  D.  708,  7  Eng.  Rul.  Cas. 

278),  .151,  157. 
Johnson   v.   Okerstrom    (70   Minn. 

303),  22. 
Johnson    v.    San    Diego    (109    Cal. 

468,  30  L.  R.  A.  178) ,  279,  280. 
Johnson  v.  Sanitary  Dist.  of  Chi- 
cago   (1C3  111.  285),  40. 
Johnson  v.  Somerville   (195  Mass. 

370),  357. 
Johnson  v.  Simonton   (43  Cal.  242, 

249),  145. 
Johnson  v.  Wells  Co.  (107  Ind.  15), 

299. 
Johnson  Co.   v.  Thayer    (94  U.   S. 

631),  234,  237. 
Johnston    v.    Mitchell    (120    Mich. 

589),  368. 
Jolly  v.  Hawesville   (89  Ky.  279), 

322. 
Jones  v.  Boston   (104  Mass.  461,  6 

Am.  Rep.  194),  117. 
Jones  v.  Clinton    (Iowa,  69  N.  W. 

418),  349. 
Jones  v.  Detroit  Bd.,  etc.  (88  Mich. 

371),  83. 
Jones  v.  Hannoran    (55  Mo.  462), 

352. 

Jones  v.  Billiard  (69  Ala.  300),  164. 
Jones  v.  Insurance  Co.  (2  Daly,  N. 

Y.,  307),  144. 
Jones  v.  Jefferson    (66  Tex.  573), 

198. 
Jones  v.  New  Haven  (34  Conn.  1), 

352. 
Jones  v.  Richmond  (18  Grat.  517), 

60. 

Jones  v.  Robins  (8  Gray,  329),  65. 


Jones  v.  Scanlan  (6  Humph.,  Tenn., 

195),  187. 

Jones  v.  Tathain  (20  Pa.  398),  105. 
Jordan    v.    Benwood    (42    W.    Va. 

312,  26  S.  E.  266) ,  354. 
Jordan  v.  Hannibal   (87  Mo.  673), 

349. 
Jordan  v.  Hansom  (49  N.  H.  199,  6 

Am.  Rep.  508),  304. 
Jordon  v.  Cass  Co.  (3  Dillon,  185), 

21. 
Judge  v.  Meriden    (38  Conn.  90), 

359. 
Judson  v.  Reardon  (16  Minn.  435), 

147,  148. 
Junkins   v.    School   Dist.    (39   Me. 

220),  175. 

K. 

Kahn  v.   Sutro    (114   Cal.   316,  46 

Pac.  Rep.  87,  33  L.  R.  A.  620),  6. 
Kane  v.  Fond  du  Lac  (40  Wis.  495), 

45. 
Kansas,  etc.  Coal  Co.  v.  N.  W.  Coal 

Co.   (161  Mo.  228),  104. 
Kansas    City    v.    Birmingham    (45 

Kan.  212,  25  Pac.  569),  336. 
Kansas  City  v.  Cook   (30  Mo.  App. 

660),  153. 
Kansas  City  v.   Corrigan    (86  Mo. 

67),  147. 
Kansas  City  v.  Gamier   (57  Kan. 

412,  46  Pac.  707),  161. 
Kansas  City  v.  Kansas  City  Belt 

Ry.  Co.  (102  Mo.  633,  10  L.  R.  A. 

851),  110. 
Kansas  City  v.  Marsh  Oil  Co.   (41 

S.  W.  943),  100. 
Kansas  N.  and  D.  R.  Co.  v.  Cuyken- 

dall  (42  Kan.  234),  75. 
Kansas  City  v.  Whipple   (136  Mo. 

475,  35  L.  R.  A.  746) ,  180. 
Kansas  City  Ry.  Co.  v.  Alderman 

(47  Mo.  349),  236. 
Karst  v.  St.  Paul,  etc.  R.  Co.   (22 

Minn.  118),  3GO. 
Katzenberger  v.  Aberdeen   (121  U. 

S.  172),  228. 


liv 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Katzenberger   v.    Laws    (90   Tenn. 

235),  148. 
Kauffman  v.  Griesemer  (26  Pa.  St. 

407,  67  Am.  Dec.  437),  353. 
Kaukauna  Water  Co.  v.  Green  Bay 

Canal  Co.  (142  U.  S.  254),  100. 
Kaufmann  v.  Stein  (138  Ind.  49,  46 

Am.  St.  368),  160. 
Kearney  v.  Woodruff  (155  Fed.  90), 

229. 
Keihl  v.  City  of  South  Bend   (76 

Fed.  921) ,  252,  254. 
Keith  v.   Howard    (24  Pick.  292), 

306. 
Keithsburg  v.  Frick    (34  111.  405), 

43. 
Keller  v.  Corpus  Christ!   (50  Tex. 

614,  32  Am.  Rep.  613),  326. 
Kelley  v.  Boston   (ISO  Mass.  233), 

351. 
Kelley  v.  Madison   (43  Wis.  638), 

209. 
Kelley   v.    Mayor    (4    Hill,   N.   Y., 

263),  221. 
Kelley  v.  Milan    (127  U.   S.  139), 

225,  226,  227,  240. 
Kelley   v.   Minn.    (63   Minn.   125), 

251,  271. 

Kellogg  v.  Malin  (50  Mo.  496),  101. 
Kellogg    v.    Janesville    (34    Minn. 

132),  345. 
Kelly  v.  Chicago   (62  111.  279),  40, 

41. 
Kelley   v.    Mayor    (4   Hill,   N.    Y., 

263),  223. 
Kelly  v.  Pittsburgh  (104  TJ.  S.  78), 

5. 

Kelly  v.  State  (92  Ind.  236).  299. 
Kelly  v.  Meeks   (87  Mo.  396),  277. 
Kemper  v.  Louisville  (14  Bush,  87), 

64. 
Kempster  v.  City  of  Milwaukee  (97 

Wis.  343),  188,  193.  194. 
Kendall   v.   Frey    (74   Wis.   26,   17 

Am.  St.  118) ,  91.  176. 
Kennedy   v.   Cumberland    (65   Md. 

514),  336. 


Kennedy  v.  New  York    (73  N.  Y. 

365) ,  331. 
Kenney  v.  Georgen   (36  Minn.  90), 

186. 
Kennison    v.    Beverly    (146    Mass. 

467),  356. 
Kentucky   v.   Dennison    (24   How., 

U.  S.,  66,  97),  362. 
Keokuk  v.  Independent  District  (53 

Iowa,  352,  36  Am.  Rep.  226),  344. 
Keough  v.  Holyoke  (156  Mass.  403), 

366. 
Kepner  v.  Commonwealth    (40  Pa. 

St.  124),  125,  126,  136. 
Kerr  v.  Jones  (19  Ind.  351),  186. 
Kessel  v.  Leiser  (102  N.  Y.  114,  55 

Am.  Rep.  769),  194. 
Ketchum  v.  Buffalo  (14  N.  Y.  356), 

38,  46. 
Kiichli  v.  Minn.  Brush  Electric  Co. 

(58  Minn.  418),  253. 
Kies  v.  Erie  (135  Pa.  St.  144),  323. 
Kies  v.  Erie  (169  Pa.  St.  598),  342. 
Kiley  v.  Forsee   (57  Mo.  390),  133. 
Kilgore  v.  Magee  (85  Pa.  St.  401), 

55,  291,  293. 
Kimball  v.  Boston   (1  Allen,  417), 

323. 
Kimball  v.  Homan  (74  Mich.  699), 

79. 
Kimball  v.  Marshall  (44  N.  H.  465) , 

171. 
Kimberlane  v.  State  (130  Ind.  120, 

14  L.  R.  A.  858),  197. 
Kimble  v.  Peoria   (140  111.  156,  29 

N.  E.  723),  138. 
Kincaid  v.  Hardin  County  (53  Iowa, 

430,  36  Am.  Rep.  236),  351. 
Kincaid  v.  Indianapolis  Nat.  Gas. 

Co.    (124    Ind.    577,    8   L.    R.   A. 

602),  106. 
Kindiger    v.    Saginaw     (59    Mich. 

355),  64. 
King  v.  Butler    (15  Johns.,  N.  Y., 

281),  208. 
King  v.  Davenport  (98  111.  305),  55, 

60. 


TABLE  OP  -CASES   CITED. 


IV 


[REFERENCES  ARE  TO  PAGES.] 


King   v.    Mahaska    Co.    (75    Iowa, 

329),  210. 
King  v.  Minneapolis  (32  Minn.  224), 

109. 
King  v.  Norcross  (196  Mass.  373), 

70. 
King  v.  Williams   (2  Maule  &  Sel. 

141),  171. 
Kings   Co.   v.   Stevens    (101   N.   Y. 

411),  96. 
Kingman  v.   Brockton    (153  Mass. 

255),  37. 
Kingsbury  v.  Sperry  (119  111.  279), 

282. 
Kiugsley  v.  Bowman  (53  N.  Y.  426) , 

371. 
Kingsley  Y.  Chicago   (124  111.  359, 

19  N.  E.  260) ,  56,  57. 
Kingston  v.  Dubois  (102  N.  Y.  219), 

399. 
Kinmundy  v.  Mahan   (72  111.  462), 

90,  164. 
Kinney  v.  Troy    (108  N.  Y.  567), 

347. 
Kinney  v.  United  States   (60  Fed. 

883),  191. 
Kipp  v.  Paterson  (26  N.  J.  L.  298), 

152. 
Klatt  v.  Milwaukee  (53  Wis.  196), 

340. 
Klingler  v.  Bickel  (117  Pa.  St.  326) , 

60. 
Knapp   v.    Hoboken    (39   N.   J.   L. 

394),  225. 
Knickerbocker  v.   People    (102  111. 

218),  295. 

Knight  v.  Nash  (22  Minn.  456),  374. 
Knightstown  v.  Musgrove  (116  Ind. 

121),  336. 
Knoblauch  v.  Minn.  (56  Minn.  325), 

104. 
Knobloch  v.  Railway  Co.  (31  Minn. 

402),  155. 
Knoedler  v.   Morristown    (100  Pa. 

St.  368),  60,  152. 
Knox    County    v.    Aspinwall     (24 

How.,  TJ.  S.,  376),  364. 


Knox  Co.  v.  Aspinwall    (21  How., 

539),  240,  242. 
Knox  County  v.  Johnson  (124  Ind. 

145,  7  L.  R.  A.  684),  181. 
Knox  County  v.  Nichols   (14  Ohio 

St.  260),  233. 
Knoxville  v.  Bell    (12  Lea,  Tenn., 

157),  336. 
Knoxville  v.  Byrd   (12  Lea,  Tenn., 

121),  60. 
Kobel   v.   Detroit    (142  Mich.  38), 

192. 
Kobs    v.    Minneapolis     (22    Minn. 

159),  313,  353. 
Koch   v.   North   Ave.   Ry.   Co.    (75 

Md.  222,  15  L.  R.  A.  377) ,  143. 
Kohn  v.  TJ.  S.   (91  U.  S.  375),  106. 
Kokomo  v.  Mahan   (100 -Ind.  242), 

79. 
Kohl  v.  United  States    (93  U.   S. 

367),  99. 
Konrad  v.  Rogers    (70  Wis.  492), 

96. 
Kohlhof  v.  Chicago   (192  111.  249), 

77. 
Kosmak  v.  New  York    (117  N.  Y. 

361,  22  N.  E.  945),  357. 
Kramer  v.  Cleveland  and  Pittsburg 

R.  Co.   (5  Oh.  St.  140),  107. 
Kreitz   v.   Behrensmeyer    (149   111. 

496,  24  L.  R.  A.  59),  193. 
Kuehn  v.  Milwaukee  (92  Wis.  263), 

328. 
Kuhn  v.  Chicago  (30  111.  App.  203) , 

161. 
Kuhn  v.  Milwaukee  (92  Wis.  263), 

314. 
Kunkle  v.  Franklin  (13  Minn.  127, 

Gil.  119),  228. 
Kutz  v.  Troy  (104  N.  Y.  344,  10  N. 

E.  Rep.  442),  312,  346. 

L. 

La  Clef  v.  City  of  Concordia  (41 
Kan.  323,  13  Am.  St.  385),  328. 

Lafayette  v.  Allen  (81  Ind.  166), 
352. 


Ivi 


TABLE   OP    CASES    CITED. 


[REFERENCES  ABE  TO  PAGES.] 


La  Fayette  v.  Fowler  (34  Ind.  140) , 

117. 

La  Fayette  v.  Male  Orphan's  Asy- 
lum  (4  La.  Ann.  1),  122. 
Lafayette  v.  Timberlake    (88  Ind. 

330),  343. 
Lafferty  v.  Huffman  (99  Ky.  80,  32 

L.  R.  A.  203),  197. 
Lalir  v.  Metro.  Elev.  Co.  (104  N.  Y. 

268),  72,  74,  75. 

Lake  v.  Palmer  (18  Fla.  501),  284. 
Lake  v.   Williamsburgh    (4  Denio, 

520),  223. 
Lake   Co.   v.   Graham    (130   U.    S. 

674),  245. 
Lake  Co.  v.  Platt  (C.  C.  A.,  79  Fed. 

Rep.  567),  240. 
Lake  Co.  v.  Rollins  (130  U.  S.  662), 

248. 
Lake  Co.  v.  Standley  (24  Colo.  1), 

224. 

Lake  Pleasanton  Water  Co.  v.  Con- 
tra   Costa    Water   Co.    (67   Cal. 

659),  101. 
Lake  View  v.  Tate  (130  111.  247,  6 

L.  R.  A.  58),  152,  155. 
Lake  View  School  Trustees  v.  Peo- 
ple (87  111.  303),  88. 
Lakeville,  In  re  (7  Kulp,  84),  279. 
Lamar  Water  &  B.  L.  Co.  v.  City  of 

Lamar  (128  Mo.  188,  32  L.  R.  A. 

157),  253. 

Lamb  v.  Lynd  (44  Pa.  St.  336),  366. 
Lambert  v.  Alcorn  (144  111.  313,  21 

L.  R.  A.  611),  353. 
Lamborn  v.  Dickinson  Co.    (97  U. 

S.  181),  217. 
Lamoille,  etc.  Ry.  Co.  v.  Fairfield 

(51  Vt.  257),  237. 
Land  in  Lawrence,  In  re  (119  Fed. 

453),  267. 
Land  Co.  v.  Oneida  (83  Wis.  649), 

279. 
Land.  etc.  Co.  v.  Brown    (73  Wis. 

294,  3  L.  R.  A.  472),  229,  283. 
Landow  West  v.  Burtram  (26  Ont. 

Rep.  161),  128. 


Lane  v.  Woodbury  (58  Iowa,  462), 

329. 
Lang  v.  Bayonne  (74  N.  J.  L.  455), 

22,  189. 
Langan  v.  Atchison   (35  Kan.  318, 

57  Am.  Rep.  165),  346. 
Langdon  v.  Castleton  (30  Vt  385), 

190,  195. 
Lange  v.  Benedict   (73  N.  Y.  12), 

304. 
Langlois  v.  Cohoes  (58  Hun,  N.  Y., 

226),  346,  349. 
Lansing  v.  County  Treas.    (1  Dill. 

C.  C.  522),  270. 
La  Porte  v.  Gamewell  Fire  Alarm 

Tel  Co.    (146  Ind.  466,  45  N.  E. 

588),  247,  252,  253,  254. 
Laramie  Co.  v.  Albany  Co.   (92  U. 

S.  307  ) ,  26,  257,  279,  280. 
Larcom   v.   Olin    (160  Mass.   102), 

27. 
Larkiu  v.  Burlington,  etc.  Ry.  Co. 

(85  Iowa,  492,  52  N.  W.  480),  78, 

155. 
Larson   v.   Grand   Forks    (3   Dak. 

307),  336. 
Last  Chance  Min.  Co.  v.  Tyler  Min. 

Co.   (157  U.  S.  683),  240. 
La  tab   Co.   v.   Peterson    (2   Idaho, 

1118,  16  L.  R.  A.  81),  101. 
Lauenstein  v.  Fond  du  Lac  (28  Wis. 

336),  89,  90. 
Launtz  v.  People   (113  111.  137,  55 

Am.  Rep.  405),  173,  181. 
La  Valle  v.  Supervisors    (62  Wis. 

376),  286. 
Law  v.  People    (87  111.  389),  139, 

247,  251,  255. 
Lawrence    v.    Boston     (119    Mass. 

126).  109. 
Lawrence  v.  Ingersoll  (88  Tenn.  52, 

6  L.  R.  A.  309,  17  Am.  St.  870), 

172,  173,  204,  367. 
Lawrence  v.   Methuen    (166  Mass. 

206),  85. 
Lawrence  v.  Webster    (167  Mass. 

513,  46  N.  E.  123),  116. 


TABLE  OF   CASES   CITED. 


Ivii 


[REFERENCES  ARE  TO  PAGES.] 


Lawson  v.  Milwaukee,  etc.  Ry.  Co. 

(30  Wis.  597),  234. 
Laycock  v.   Baton  Rouge    (35  La. 

Ann.  475),  249. 

Leach  v.  People  (122  111.  420),  283. 
Leavenvvorth    v.    Miller     (7    Kan. 

479),  229,  230. 
Leavenworth,  etc.  Ry.  Co.  v.  Platte 

Co.    (42  Mo.  171),  233. 
Leavenworth  Co.  v.  Brewer  (9  Kan. 

307),  195. 
Leavenworth  Co.  Com'rs  v.  Sellew 

99  U.  S.  624),  365. 
Lee  v.  Drake    (2   Salk.  468),  194. 
Lee  v.  Minneapolis   (22  Minn.  13), 

359. 
Leech  v.  Wilson  Co.  (68  Tex.  353), 

224. 
Leeds  v.  Atlantic  City  (52  N.  J.  L. 

333),  204. 
Leeds  v.  Richmond  (102  Ind.  372), 

100,  316. 
Leep  v.  St.  Louis  Iron  Mountain  R. 

Co.    (58   Ark.   407,  23  L.   R.   A. 

264),  49,  287. 
Leets  v.   Pilgrim  Church    (14  Mo. 

App.  590),  55. 
Lehew  v.  Brummel    (103  Mo.  546, 

23  Am.  St.  895),  88. 
Lent  v.  Tillson  (140  U.  S.  316),  116. 
Leonard  v.  Brooklyn  (71  N.  Y.  498), 

97. 
Leonard  v.  Canton  (35  Miss.  189), 

32. 
Levee   Dist.   v.   Farmer    (101   Cal. 

178),  79,  SO. 
Levy  v.  New  York  (1  Sandf.  466), 

321. 
Levy  v.  Salt  Lake  City   (3  Utah, 

63),  336. 
Lewis  v.  Koltz   (39  La.  Ann.  259), 

307. 
Lewis   v.   Newton    (75   Fed.   884), 

153. 
Lewis    v.    Shreveport    (108    U.    S. 

282),  43,  227. 
Lewis  v.  Widler  (99  Cal.  412),  248. 


Lexington    v.    Mulliken     (7    Gray, 

Mass.,  280),  363. 
L'Herault  v.  Minneapolis  (69  Minn. 

261,  72  N.  W.  73),  349. 
Liberty   Bell,   The    (23   Fed.    Rep. 

843),  230,  370. 
Lickly  v.  Bishop    (150  Mich.  256), 

184. 
Lkldy  v.  Long  Island  City  (104  N. 

Y.  218),  195. 
Lima  v.  Cemetery  Ass'n   (42  Ohio 

St.  128),  121. 
Lincoln  v.  Boston  (148  Mass.  578,  3 

L.  R.  A.  257) ,  311,  317,  321,  343. 
Lincoln   v.    Smith    (29   Neb.   228), 

336. 
Lincoln   v.    Smith    (28   Neb.   762), 

350. 
Lincoln  v.  Worcester  (8  Cush.  55), 

217. 
Liudall  v.  Covington    (90  Ky.  444, 

29  Am.  St.  398),  150. 
Lindley  v.  Polk  County  (84  Iowa, 

308),  328. 
Lindsay  Irr.  Co.  v.  Mehrtens    (97 

Cal.  676),  102. 
Linegar    v.    Rittenhouse     (94    111. 

208),  177. 

Linn  v.  Adams  (2  Ind.  143),  252. 
Liquidators  v.  Municipality   (6  La. 

Ann.  21),  272. 

Lipes  v.  Hand  (104  Ind.  503),  111. 
Lippelman   v.   Cincinnati    (4   Ohio 

C.  C.  327),  90. 
List  v.  Wheeling   (7  W.  Va.  501), 

247. 
Litchfield  v.  Ballou  (114  U.  S.  190), 

248. 
Little  v.  Madison    (49  Wis.   605), 

298,  343. 
Little  v.  Portland  (26  Oregon,  235), 

248. 
Littlefleld  v.  State  (42  Neb.  223,  47 

Am.  St.  697),  153,  158. 
Littler  v.  Jayne  (124  111.  123),  42. 
Little  Rock  v.  Parish  (36  Ark.  166), 

209. 


Iviii 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Livingston  v.  Pippin  (31  Ala.  542), 

82. 
Livingstone  v.  Wolf    (136  Pa.   St. 

519,  20  Am.  St.  937),  78. 
Lloyd  v.  New  York  (5  N.  Y.  369,  55 

Am.  Dec.  347) ,  310. 
Loan  Ass'n  v.  Topeka  (20  Wall.,  U. 

S.,  655),  37,  229,  232,  237,  239. 
Lock  v.  City  of  Central  (4  Colo.  65, 

34  Am.  Rep.  66),  190. 
Locke's  Appeal    (72  Pa.   St.  491), 

165. 

Lockhart  v.  Troy  (48  Ala.  579),  43. 
Lodi  Tp.  v.  State  (51  N.  J.  L.  402), 

292. 
Loftus  v.  F.  &  M.  N.  Bank  (133  Pa. 

St.  197),  299. 
Logan  v.  Pyne    (43  Iowa,  524,  22 

Am.  Rep.  261) ,  95. 
Lombard   v.   Culbertson    (59   Wis. 

433),  307. 

London  v.  Wood  (12  Mod.  674),  131. 
Long  v.  Duluth  (49  Minn.  385), 

32,  85,  95. 
Long  v.  Fuller   (68  Pa.  St.  170), 

112. 
Long  Branch  v.  Sloane  (49  N.  J.  L. 

356),  291,  298. 

Long  v.  Louisville  (98  Ky.  67) ,  105. 
Longworth  v.  Council  (32  Ind. 

322),  299. 
Longworth  v.  Evansville    (32  Ind. 

322),  301. 

Look  v.  Industry  (51  Me.  375),  217. 
Lord  v.  Anoka  (36  Minn.  176),  170. 
Lord  v.  Mobile  (113  Ala.  360,  21  So. 

366),  342,  344. 

Lord  v.  Oconto  (47  Wis.  386),  96. 
Lorence  v.  Ellensburg  (13  Wash. 

341,  52  Am.  St.  42) ,  350. 
Los  Angeles  v.  Teed  (112  Cal.  319, 

44  Pac.  580),  251,  291. 
Los  Angeles  v.  Waldren    (65  Cal. 

283),  128. 
Louis    v.    Bourbon    Co.     (12   Kan. 

1SS),  234. 


Louisiana  v.  Police  Jury    (111  U. 

S.  716),  365. 
Louisiana   v.   Pilsbury    (105  II.   S. 

278),  271. 
Louisiana  v.  Wood  (102  U.  S.  294), 

214,  215. 
Louisville  v.  Bannon   (99  Ky.  74), 

79. 
Louisville,  etc.  Co.  v.  N.  R.  Co.  (14 

L.  R.  A.  579),  180. 
Louisville,  etc.  R.  Co.  v.  Pritchard 

(131  Ind.  564,  11  Am.  St.  395), 

338. 
Love  v.  Atlanta  (95  Ga.  129,  51  Am. 

St.  64),  328. 
Love  v.  Raleigh   (116  N.  C.  296,  28 

L.  R.  A.  ]92),  314. 
Love  v.  Schenck   (12  Ired.,  N.  C., 

304),  268. 
Lovell  v.  St  Paul   (10  Minn.  290), 

123. 
Lovejoy  v.  Foxcroft  (91  Me.  367), 

38. 
Lover   v.   Glochin    (28   Wis.   364), 

188. 
Lowber  v.  Mayor  (5  Abb.  Pr.,  N.  Y., 

325),  5. 
Lowe  v.  Howard  Co.  (94  Ind.  553), 

97. 
Lowell  v.  Boston    (111  Mass.  454, 

15  Am.  Rep.  39),  37,  113,  232. 
Lowell  v.  Spaulding  (4  Cush.  277), 

69. 

Lowrey  v.  Pekin  (210  111.  575),  69. 
Lowry  v.  Polk  Co.  (51  Iowa,  50,  33 

Am.  Rep.  113),  206. 
Lowry  v.  Rainwater   (70  Mo.  152, 

35  Am.  Rep.  420),  51. 
Lozier  v.  Newark  (48  N.  J.  L.  452), 

148. 
Luce  v.  Board  of  Exam.  (153  Mass. 

108),  204. 
Luce  v.  Dukes  Co.  (153  Mass.  108), 

366. 
Ludlow  v.  Cincinnati  S.  R.  Co.  (78 

Ky.  357),  120. 


TABLE  OP   CASES   CITED. 


lix 


[REFERENCES  ARE  TO  PAGES.] 


Lund   v.   Ohippewa   Co.    (93   Wis. 

640,  67  N.  W.  Rep.  927,  34  L.  R. 

A.  131),  113,  225. 
Luxton  v.  North  River  Bridge  Co., 

153  U.  S.  525),  20. 
Lycoming  v.  Union  (15  Pa.  St.  166, 

53  Am.  Dec.  571),  273,  275. 
Lyell  v.  Lapeer  Co.  (6  McLean,  C. 

C.,  446),  222. 
Lynch  v.  Forbes   (161  Mass.  302), 

104,  105. 
Lynch  v.  New  York  (76  N.  Y.  60), 

356. 
Lynchburg    v.    Slaughter    (75    Va. 

57),  240. 

Lyon  v.  Adams  (2  Ind.  143),  308. 
Lyon  v.  Adamson    (7  Iowa,  509) , 

208. 
Lyon  v.  Cambridge  (136  Mass.  419), 

339. 

M. 

Mayor  of  Baltimore  v.  Porter   (18 

Md.  284),  32. 
McAleer  v.  Angell   (19  R.  I.  688), 

248. 
McAllen    v.    Hamblin    (129    Iowa, 

329),  30. 
McAllister  v.  Clark  (33  Conn.  91), 

51. 
McAunich   v.   M.,   etc.   R.   Co.    (20 

Iowa,  388),  282. 
McBean    v.    Chandler     (9    Heisk., 

Tenn.,  349),  120. 
McBean  v.  Fresno   (112  Cal.  159), 

36,  253. 

McBride  v.  Grand  Rapids  (47  Mich. 
23G),  183. 

McCann   v.   Waltham    (163   Mass. 

344),  314. 
McCarthy  v.  Boston  (135  Mass. 

197),  315. 
McCarthy  v.  Syracuse  (46  N.  Y. 

194),  70. 

McCoull  v.  Manchester  (85  Va.  579, 
2  L.  R.  A.  691),  322,  339. 


McChaon   v.   Leavenworth   Co.    (8 

Kan.  438),  190. 
McClure  v.  La  Platte  Com'rs    (19 

Colo.  122),  207. 
McClure  v.  Oxford  Tp.    (94  U.   S. 

429),  240,  241. 
McComb  v.  Akron  Council  (15  Ohio, 

474),  359. 
McConihe   v.   McMurray    (17   Fla. 

238),  284,  289. 
McConnell  v.  Dewey  (5  Neb.  385), 

308. 
McConnell  v.  Osage  City  (80  Iowa, 

293),  345. 
McCool  v.  Grand  Rapids  (58  Mich. 

41),  340. 
McCormick  v.  Pratt   (8  Utah,  294, 

17  L.  R.  A.  243),  177. 
McCormick  v.  Weaver    (144  Mich. 

6),  69. 
McCoull    v.    Manchester     (85    Va. 

579),  336. 
McCoy  v.  Briant  (53  Cal.  247),  126, 

229. 
McCrowell  v.  Bristol    (89  Va.  652, 

20  L.  R.  A.  653) ,  89,  90,  124. 
McCullough   v.   Mayor    (23   Wend. 

458),  223. 
McCullough  v.  Maryland  (4  Wheat. 

316),  20. 
McCumber   v.    Waukesha    Co.    (91 

Wis.  442,  65  N.  W.  51),  190. 
McDade  v.  Chester  (117  Pa.  St.  414, 

2  Am.  St.  681),  311,  321. 
McDermott  v.  Board  (5  Abb.  Pr.,  N. 

Y.,  422),  144. 
McDermott  v.  Miller   (45  N.  J.  L. 

251),  136. 
McDonald  v.  New  York   (68  N.  Y. 

23,  23  Am.  Rep.  144),  212. 
McDonald  v.  Red  Wing  (13  Minn. 

38,  Gil.  25),  60,  325,  326. 
McDonald  v.  State  (80  Wis.  411), 

133. 
McDonogh's  Ex'r  v.  Murdoch    (15 

How.  367),  47. 


Ix 


TABLE  OP   CASES   CITED. 


McDonough    v.    Virginia    City 

Nev.  431),  336. 
McDougall     v.    Hennepin    Co.     (4 

Minn.  184,  Gil.  130),  373. 
McDowell  v.  Mass.,  etc.  Co.  (96  N. 

C.  514),  235. 
McElroy  v.  Albany  (65  Ga.  387,  38 

Am.  Rep.  781),  324. 
McFarland  v.  Gordon  (70  Vt.  455), 

175. 
McGavock  v.  Omaha    (40  Neb.  64, 

58  N.  W.  543),  127. 
McGill  v.  State  (34  Ohio  St.  228), 

286. 
McGaffin  v.  Cohoes  (74  N.  Y.  387) , 

209. 
McGraw  v.  Whitson  (69  Iowa,  348), 

133,  134. 

McGuire,  In  re  (57  Cal.  604),  160. 
McHugh  v.  Boston  (173  Mass.  408), 

69. 
McHugh  v.  St.  Paul  (67  Minn.  441, 

70  N.  W.  Rep.  5),  338,  339. 
Mcllhinny  v.   Trenton    (148  Mich. 

380),  73. 
Mclnerney    v.    Denver     (17    Colo. 

302),  293. 
Mclnerny  v.  Reid  (23  Iowa,  410), 

123. 

McKean  v.  Lee  (51  N.  Y.  300) ,  55. 
McKeesport  v.   Soles    (178  Pa.  St. 

363,  35  Atl.  Rep.  927),  121. 
McKennon  v.  St.  Louis,  I.  M.  &  S. 

R.  Co.  (69  Ark.  104),  104. 
McKenzie  v.  Wooley   (39  La.  Ann. 

944),  135. 
McLellan  v.  Young  (54  Ga.  399,  21 

Am.  Rep.  276),  373. 
McManus  v.  Duluth,  C.  &  W.  R.  Co. 

51  Minn.  30),  236. 
McMillan   v.   Anderson    (95   U.    S. 

37),  108,  116. 
McMillan  v.  Richards  (45  Neb.  786, 

64  N.  W.  242),  197. 
McXally  v.  Cohoes  (127  N.  Y.  350), 

336. 


[REFERENCES  ARE  TO  PAGES.] 
(6 


McPherson  v.  Foster  (43  Iowa,  48, 
22  Am.  Rep.  215) ,  239. 


Leonard     (29    Md. 


McPherson    v. 

377),  131. 

McRae  v.  Hogan  (39  Wis.  529),  286. 
Ma  comber  v.  Nichols  (34  Mich.  212, 

22  Am.  Rep.  522),  241. 
Ma  comber  v.  Taunton    (100  Mass. 

255),  339. 
Macon  v.  Patty  (57  Miss.  378),  114, 

115. 
Macy  v.  Duluth    (68  Minn.  452), 

195. 
Madison  v.  Harbor  Board  (76  Md. 

395,  25  Atl.  337),  41. 
Magee  v.  Com.  (46  Pa.  St.  358) ,  120. 
Magenan  v.  Fremont  (30  Neb.  843, 

9  L.  R.  A.  786) ,  143. 
Magie  v.  Stoddard   (25  Conn.  565, 

68  Am.  Dec.  375),  186. 
Maguire  v.  Spence  (91  N.  Y,  302), 

345,  346. 
Mai  lory  v.  Ferguson  (50  Kan.  685, 

22  L.  R.  A.  99),  306. 
Malone    v.    Williams     (118    Tenn. 

390),  296. 
Manderschid   v.   Dubuque    (29   la. 

73),  67. 
Mangam  v.  Brooklyn  (98  N.  Y.  585, 

5  Am.  Rep.  705),  191. 
Manhattan  Co.  v.  Ironwood  (43  U. 

S.  App.  369,  74  Fed.  535),  241. 
Mankato  v.  Arnold  (36  Minn.  62,  30 

N.  W.  505).  145. 
Mankato  v.  Fowler  (32  Minn.  354) , 

75. 
Mankato  v.  Fowler  (32  Minn.     A), 

52,  56,  158. 
Manners   v.   Haverhill    (135  Mass. 

165),  316. 
Mansfield  v.  Moore  (124  111.  133), 

344. 
Marble  Co.   v.   Harvey    (!.»!   Tenn. 

125),  215. 
March  v.  Com.    (12  B.  Mon.,  Ky., 

25),  149. 


TABLE  OP   CASES   CITED. 


Ixi 


[REFERENCES  ARE  TO  PAGES.] 


Marcy  v.  Oswego  Tp.  (92  U.  S.  637) , 


Marion   Co.   Com.   v.   Barker    (25 

Kan.  258),  m. 
Marion  v.  Skillinan  (127  Ind.  130) , 

67. 

Mark  v.  State  (97  N.  T.  572),  150. 
Markharn  v.  Brown  (37  Ga.  277,  92 

Am.  Dec.  76),  52. 
Markle  v.   Akron    (14  Ohio,  586), 

148. 
Marmet  v.  State  (45  Ohio  St.  63), 

160,  293. 
Marony  v.  City  Council    (19  R.  I. 

2),  202. 
Marsh  v.  Fulton  Co.   (10  Wall.,  U. 

S.,  676),  43,  214,  237. 
Marshall  v.  Silliman   (61  111.  225), 

274. 
Marshall  v.  Snediker  (25  Tex.  460), 

219. 
Marshalltown   v.    Bloom    (43   Am. 

Rep.  116,  58  Iowa,  184) ,  37,  58. 
Marshall  v.  111.  State  Reformatory 

(201  111.  9) ,  178. 
Marshall  Co.  v.  Johnson  (127  Ind. 

238,  26  N.  E.  821),  191. 
Martin  v.  Dicks  (52  Miss.  53),  277. 
Martin  v.  State   (23  Neb.  371,  38 

N.  W.  554),  134. 
Martin  v.  Tyler  (4  N.  Dak.  278,  25 

L.  R.  A.  838),  106,  111,  112. 
Martindale  v.  Palmer  (52  Ind.  411), 

135,  171. 
Mason    v.    Shawneetown    (77    111. 

533),  233. 

Mather  v.  Ottawa  (114  111.  659,  11 

Am.  &  Eng.  Corp.  Gas.  248),  232. 
Matheson  v.  Caminade    (55  N.  J. 

L.  4),  295. 
Matthews   v.    Alexandria    (68   Mo. 

115,  30  Am.  Rep.  776) ,  90,  91,  96. 
Matthews  v.  Kelsey   (58  Me.  56), 

98. 
Matthews  v.  Westboro  (131  Mass. 

521),  45, 


Matthis  v.  Cameron  (62  Mo.  504), 

224. 
Maudlin  v.  Greenville  (33  S.  C.  1), 

85. 
Mauran  v.  Smith    (8  R.  I.  132,  5 

Am.  Rep.  554),  363. 
Maus  v.  Springfield   (101  Mo.  613, 

20  Am.  St.  634),  336. 
Maximilian    v.    Mayor    (62    N.    Y. 

180),  329. 

Maxwell  v.  Board  (119  Ind.  20),  65. 
May  v.  Cincinnati  (1  Ohio  St.  268), 

148. 

May  v.  Rice  (91  Ind.  546),  128,  131. 
Maynard  v.  Board  of  District  Can- 
vassers   (84  Mich.  298,  11  L.  R. 

A.  332),  366. 

Mayor,  In  re  (182  N.  Y.  361),  259. 
Mayor  v.  Beasly  (1  Humph.,  Tenn., 

232),  151. 
Mayor  v.  City  Bank  (58  Ga.  587), 

240. 
Mayor  v.  Dry  Dock,  etc.  Ry.  Co. 

(133  N.  Y.  104,  28  Am.  St.  609), 

153. 
Mayor  v.  Huff   (60  Ga.  221),  175, 

176. 
Mayor  v.  Kelley    (98  N.  Y.  467), 

191. 
Mayor  v.  Keyser   (72  Md.  106,  19 

Atl.  706) ,  41. 
Mayor  v.  Lever  (1891,  12  B.  168), 

174. 
Mayor  of  Ma  con  v.  Huff    (60  Ga. 

221),  183. 
Mayor  v.  Marriott   (9  Md.  174,  66 

Am.  Dec.  326),  321. 
Mayor  v.  Morgan  (7  Mart.,  N.  S.,  1, 

18  Am.  Dec.  232),  177. 
Mayor  v.  Muzzy  (33  Mich.  61),  192, 

196. 
Mayor  v.  Porter    (18  Md.  284,  79 

Am.  Dec.  686),  126. 
Mayor   v.    Ray    (19   Wall.,   U.    S., 

468),  38,  211,  215,  221,  226. 
Mayor  v.  Sikes  (94  Ga.  30,  47  Am, 

St.  132),  352. 


Ixii 


TABLE   OP    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Mayor  v.  State  (15  Md.  37G,  74  Am. 

Dec.  572) ,  257. 
Mayor    v.    Winfield     (8    Humph., 

Tenn.,  707),  151. 
Mayor  of  Baltimore  v.   State    (15 

Md.  376,  74  Am.  Dec.  572),  33, 

262. 
Mayor,  etc.  of  Niles  v.  Muzzy   (33 

Mich.  61),  192,  196. 
Mayor  of  New  York,  In  re  (99  N. 

Y.  569),  101. 
Mayor   of   New   York,   In   re    (11 

John.  77),  121. 
Mayor,  etc.  of  New  York  v.  Bank 

(111  N.  Y.  446),  275. 
Mazet  v.   Pittsburgh    (137  Pa.   St. 

548),  36,  40,  42. 
Meeker     v.     Van     Rensaeller     (15 

Wend.  397),  60. 
Melick  v.  Washington  (47  N.  J.  L. 

254),  131. 
Mellen   v.   Lansing    (11   Fed.   Rep. 

829),  237. 
Memphis  v.  United  States    (97  U. 

S.  293),  270. 
Memphis  v.  Woodward  (12  Heisk., 

Tenn.,  499,  27  Am.  Rep.  750),  194. 
Mendel    v.    Wheeling    (28   W.   Va. 

233),  318,  325,  333. 
Mendenhall    v.    Burton     (42    Kan. 

570),  277. 
Mercer  County  v.  Fleming  (111  Cal. 

46),  152. 
Merchants'    Bank    v.    Bergen    Co. 

(115  U.  S.  384),  238. 

Merrick  v.  Wallace    (19  111.  486), 
306. 

Merrill  v.  Austin  (53  Cal.  379),  218. 
Merrill  v.  Campbell  (49  Wis.  535), 
373. 

Merrill   v.   Monticello    (138  U.   S. 

673),  226. 
Merrill,  etc.  Ry.  Co.  v.  Merrill   (80 

Wis.  358),  94. 
Merriwether  v.  Garrett  (102  U.  S. 

472),  98,  257,  264,  270,  364. 


Merwin  v.   Chicago    (45   111.   133), 

373. 

Metcalf  v.  State  (76  Ga.  208),  159. 
Methodist  E.  Church  v.  Baltimore 

(6  Gill,  391),  133. 
Methodist  Church  v.  Pickett  (19  N. 

Y.  482),  22. 
Metzger  v.  Beaver  Falls    (178  Pa. 

St.  1),  86. 
Meyer  v.   Fromm    (108  Ind.  208), 

137. 
Meyer  v.  Muscatine  (1  Wall.,  U.  S., 

384),  239. 
Michel  v.  New  Orleans  (32  La.  Ann. 

1094),  193. 
Michener  v.  Philadelphia   (118  Pa. 

St.  535),  116,  119. 
Michigan    City   v.    Boeckling    (122 

Ind.  39),  339,  340. 
Mifflin   Bridge  Co.   v.   Juniata   Co. 

(144    Pa.    St.   235,    13   L.    R.    A. 

431),  109. 
Mikesell  v.  Durkee  (34  Kan.  509), 

69. 
Milan  v.  Tennessee  C.  Ry.  Co.   (11 

Lea,  Tenn.,  330) ,  226. 
Milburn  v.  Glynn  Co.  (112  Ga.  160), 

368. 
Miles  v.  Worcester  (154  Mass.  511), 

356. 
Milhan  v.  Sharp   (27  N.  Y.  611,  15 

Barb.  193,  84  Am.  Dec.  314),  77. 
Miller  v.  Bradford   (12  Iowa,  19), 

307. 
Miller   v.    Kalamazoo    (140   Mich. 

494),  92. 

Miller  v.  Kister  (68  Cal.  142),  288. 
Miller  v.   School  District   (5  Wyo. 

217),  251. 

Miller  v.  Ware  (31  Iowa,  524),  307. 
Million  v.   Soule    (15  Wash.  261), 

221. 

Mills  v.  Brooklyn   (32  N.  Y.  489), 

354. 
Mills  v.  Charleston   (29  Wis.  400), 

43. 


TABLE   OP    CASES    CITED. 


Ixiii 


[REFERENCES  ARE  TO  PAGES.] 


Mills  v.  Gleason   (11  Wis.  470,  78 

Am.  Dec.  721),  38,  227,  228. 
Mills  Co.  Nat.  Bank  v.  Mills  Co.  (67 

Iowa,  697),  223. 
Milne  v.  Davidson  (5  Mart.,  N.  S., 

La.,  586),  144. 
Milward  v.  Thatcher   (2  T.  R.  81, 

7  Eng.  Rul.  Cas.  320),  184,  186. 
Milwaukee  v.   Koeffler    (116  U.   S. 

219),  371. 
Mimins  v.  Mimms  (35  Ala.  23),  306, 

307. 
Miners'  Bank  v.  United  States   (1 

Greene,  Iowa,  553),  4. 
Miners'  Ditch  Co.  v.  Zellerbach  (37 

Cal.  543,  99  Am.  Dec.  300),  4,  5, 

212. 
Minneapolis  v.  N.  W.  Ry.  Co.   (32 

Minn.  452),  112. 
Minneapolis  W.  R.  Co.  v.  M.  &  St. 

L.  R.  Co.  (61  Minn.  502),  102. 
Minnesota  Linseed  Oil  Co.  v.  Pal- 
mer (20  Minn.  424),  370. 
Minot  v.  West  Roxbury  (112  Mass. 

1),  113. 
Minturn  v.  Larue   (23  How.  435), 

32,  36. 
Mississippi,  etc.  R.  Co.  v.  Camden 

(23  Ark.  300),  227. 
Missouri    Pac.   Ry.    Co.   v.   Humes 

(115  TJ.  S.  512),  106. 
Mo.  Pac.  R.  Co.  v.  Cy.  of  Wyandotte 

(44  Kan.  32) ,  130. 
Missouri  Pac.  Ry.  Co.  v.  Keys  (55 

Kan.  205,  49  Am.  St.  249),  352. 
Missouri   Pac.   Ry.   Co.   v.   Tygard 

(84  Mo.  263,   54  Am.   Rep.  97), 

236. 

Mitchell  v.  Franklin  Co.   (25  Ohio 

St.  143),  6. 
Mitchell  v.  Illinois,  etc.  Ry.  Co.  (58 

111.  286),  107. 

Mitchell   v.   Negaunee    (71  N.   W. 
646),  84. 

Mitchell  v.  Rockland  (52  Me.  118), 
317. 


Mittelstadt  v.   Morrison    (76  Wis, 

265),  154. 
Moale  v.  Baltimore  (61  Md.  224), 

124. 

Mobile  v.  Petit  (74  Cal.  332),  210. 
Mobile  v.  Watson  (116  U.  S.  289), 

271,  280. 

Mobile  v.  Yuille  (3  Ala.  137),  131. 
Moffett  v.  Asheville  (103  N.  C.  237, 

14  Am.  St.  810),  315,  320. 
Mouadnock  Ry.   Co.   v.   Petersboro 

(49  N.  H.  281),  90. 
Monk  v.  New  Utrecht   (104  N.  Y. 

552),  337,  343. 

Monongahela   Bridge  Co.  v.   Pitts- 
burg   (114  Pa.  St.  478),  349. 
Monongahela   City  v.   Fisher    (111 

Pa.  St.  9),  338. 
Monroe  v.  Lawrence  (44  Kan.  607) , 

49,  51. 
Montague  v.  Horton  (12  Wis.  599) , 

223. 
Montclair  v.  Ramsdell   (107  U.  S. 

147),  244. 
Montezuina  v.  Minor  (73  Ga.  484), 

64. 
Montgomery  v.  Gilmer  (33  Ala.  116, 

70  Am.  Dec.  562),  354,  307. 
Montgomery    v.    Parks    (114    Ala. 

118),  161. 
Montgomery  v.  Santa  Ana  &  W.  R. 

Co.  (104  Cal.  186),  74,  75. 
Montgomery    v.    Wright    (72    Ala. 

411),  336. 

Montgomery  City  Council  v.  Mont- 
gomery, etc.  Ry.  Co.  (31  Ala.  76), 

211. 
Montgomery  Co.  v.  Menifee  (93  Ky. 

33),  280. 
Montgomery     Co.      v.      Schuylkill 

Bridge  Co.  (110  Pa.  St.  54) ,  110. 
Monticello   v.   Fox    (Ind.   App.,  28 

N.  E.  1025),  357. 
Montpelier  v.  E.  Montpelier  (27  Vt. 

704,  29  Vt.  12),  263. 
Montpelier  Nat.  L.  Ins.  Co.  v.  Mead 

(13  S.  D.  37),  246. 


Ixiv 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Moody  v.  Moeller    (72  Tex.  635), 

171. 
Moody    v.    Niagara    County     (46 

Barb.,  N.  Y.,  659),  323. 
Moon  v.  Ionia  (81  Mich.  535,  46  N. 

W.  25),  346. 

Moore  v.  Abbott  (32  Me.  46),  335. 
Moore  v.  Kenockee  Tp.  (75  Mich. 

332),  349. 
Moore  v.  Mayor  (73  N.  Y.  238,  29 

Am.  Rep.  134),  241,  317. 
Moore    v.    Minneapolis    (19   Minn. 

300,  Gil.  259),  349. 
Moore  v.  Monroe  (64  Iowa,  364,  52 

Am.  Rep.  444),  88. 
Moore  v.  New  York  (73  N.  Y.  238), 

260,  212. 
Moran  v.  Miami  Co.  (67  U.  S.  722), 

243. 
Moran  v.  New  Orleans  (112  TJ.  S. 

69),  147. 
Moran  v.  Palace  Car  Co.  (134  Mo. 

641,  56  Am.  St.  543) ,  321. 
Morduret  v.  Ft.  Wayne,  etc.  Trac- 
tion Co.  (163  Ind.  268),  74. 
Morford   v.   linger    (8   Iowa,   82), 

277. 
Morgan  v.  Chicago,  etc.  Ry.  Co.  (36 

Mich.  428),  108. 
Morgan  v.  Dubuque  (28  Iowa,  575), 

123. 
Morgan  v.  Morley   (1  Wash.  464), 

336. 

Morris  v.  Rome  (10  Ga.  532),  159. 
Morris  v.  State  (62  Tex.  728),  270. 
Morris  v.  Taylor  (31  Oreg.  62), 

226. 
Morrison  v.  Bachert   (112  Pa.  St. 

322) ,  297. 
Morrison    v.    Hershire    (32    Iowa, 

271),  123. 
Morrison   v.   Lawrence    (98   Mass. 

219),  316. 
Morrison  v.  St.  Paul  (5  Minn.  108), 

121. 
Morrison  v.  Semple   (6  Binn.,  Pa., 

94),  103. 


Morse  v.  Richmond  (41  Vt.  435,  98 

Am.  Dec.  600),  341. 
Morton  v.  Nevada    (41  Fed.  582), 

228. 
Mosher  v.  School  District  (44  Iowa, 

122),  273. 

Moss  v.  Augusta  (93  Ga.  797),  324. 
Moss  v.  Comings    (44  Mich.  359), 

304. 

Moss  v.  Oakland  (88  111.  109),  139. 
Mostyn    v.    Fabrigas    (Cowp.    161, 

Smith's  L.  C.  1027),  304. 
Motz  v.  Detroit  (18  Mich.  495),  121. 
Moulton    v.    Evansville    (25    Fed. 

282),  239. 
Moulton  v.  Moulton  (5  Barb.  286), 

308. 
Moulton   v.   Scarborough    (71   Me. 

267,  36  Am.  Rep.  308),  329,  330, 

331. 
Moultrie  Co.   v.   Rockingham   Sav. 

Bank  (92  U.  S.  631),  243. 
Mount  Pleasant  v.  Beckwith    (100 

U.  S.  514),  270,  277,  280. 
Mount    Pleasant    v.    Vancise     (43 

Mich.  361),  147. 
Mouse's  Case    (12  Coke,  13,   63), 

325. 
Mower  v.  Leicester  (9  Mass.  237), 

335. 
Mueller   v.    Eau   Claire   Co.    (108 

Wis.  304),  36. 
Mugler  v.  Kansas  (123  U.  S.  623), 

53. 
Muhlenbrink  v.  Com.   (44  N.  J.  L. 

365),  158. 

Mullen  v.  Rutland  (55  Vt.  77) ,  348. 
Municipality  v.  Cutting  (4  La.  Ann. 

335),  127. 
Municipality  v.  Dunn  (10  La.  Ann. 

57),  115. 
Municipality  v.  Pease  (2  La.  Ann. 

538),  86. 
Munn  v.  Illinois  (94  U.  S.  113),  4, 

49. 
Murphy  v.  Kelley  (68  Me.  521),  352. 


TABLE  OP   CASES   CITED. 


Ixv 


[REFERENCES  ARE  TO  PAGES.] 


Murphree  v.  Mobile  (104  Ala.  532), 

97. 
Murr  v.  Naperville   (210  III.  371), 

184. 
Murray  v.   Allen    (R.   I.,  38  Atl. 

497),  353. 
Muscatine   v.   Hershey    (18   Iowa, 

39),  86. 
Muskegon    v.    Zeeryp    (134    Mich. 

181),  37. 
Musser  v.  Hyde  (2  W.  &  S.  314), 

307. 

Mutual  Ben.  Life  Ins.  Co.  v.  Eliza- 
beth (42  N.  J.  L.  235),  239. 
Myers  v.   Spooner    (55  Cal.  262), 

307. 

N. 
Nance  v.  Falls  City  (16  Neb.  85), 

209. 
Nansen  v.  Grizzard  (96  N.  C.  293) , 

179. 
Napa  v.  Esterly   (61  Cal.  509,  16 

Pac.  256),  137. 
Napman  v.  People  (19  Mich.  352), 

161. 

Nash  v.  Lowry  (37  Minn.  261),  95. 
Nash   v.  Muldoon    (16  Nev.  404), 

307. 
Nash  v.  St.  Paul  (11  Minn.  174,  Gil. 

110),  42,  224. 
Nashville  v.  Sutherland  (92  Tenn. 

335,  19  L.  R.  A.  619),  210,  318. 
Nashville  v.  Toney  (10  Lea,  Tenn., 

643),  216. 

National  Bank  of  Commerce  v.  Gre- 
nada (44  Fed.  262),  125,  137. 
National  Life  Ins.  Co.  v.  Board  of 

Education   (62  Fed.  783),  242. 
Neeld's  Road  (1  Pa.  St.  353),  107. 
Neeman  v.  Smith  (50  Mo.  525),  124. 
Neff  v.  Wellesley  (148  Mass.  487,  2 

L.  R.  A.  500) ,  329,  331. 
Neier  v.  Missouri  Pac.  Ry.  Co.  (12 

Mo.  App.  25),  152. 
Nelson  v.  Fend.   (203  111.  120),  70. 
Nelson  v.  Haywood  Co.   (87  Tenn. 

781,  4  L.  R.  A.  648),  230,  233. 


Nelson  v.  St.  Martin's  Parish  (111 

U.  S.  716),  271. 

Nelson  v.  Milford  (7  Pick.  18),  44. 
Netzer  v.  Crookston  (59  Minn.  244), 

342,  356,  359. 
Nevada  v.  Hampton  (13  Nev.  441), 

275. 
Nevada  Bank  v.  Steinmetz  (64  Cal. 

301),  236. 
New  Boston  v.  Dunbarton    (12  N. 

H.  409),  19. 
Newark  v.  Elliott  (5  Oh.  St.  113), 

96. 
Newark  v.  Funk  (15  Ohio  St.  463), 

373. 
Newark  v.  Del.,  Lack.,  etc.  R.  Co. 

(42  N.  J.  Eq.  196),  69. 
Newark,  etc.  v.  Passaic   (45  N.  J. 

Eq.  393),  55. 
Newberry  v.  Fox  (37  Minn.  141,  15 

Am.  St.  830),  39,  210. 
New  Brunswick  v.  Fitzgerald   (48 

N.  J.  L.  457,  8  Atl.  729),  293. 
Newcomb     v.     Boston     Protection 

Dept.    (151  Mass.  215,  24  N.  E. 

39),  327. 
Newell  v.  Minneapolis,  etc.  R.  Co. 

(35  Minn.  112,  59  Am.  Rep.  303), 

74,  77. 
New   Hampshire,   etc.   Ry.   Co.   v. 

Chatham  (42  Conn.  465) ,  238. 
New  London  v.  Brainerd  (22  Conn. 

552),  370. 
Newman  v.  Emporia  (41  Kan.  583), 

120. 
Newman  v.  Metropolitan,  etc.  Ry. 

Co.  (118  N.  Y.  618),  111. 
Newmeyer  v.  Missouri,  etc.  Ry.  Co. 

(52  Mo.   81,   14  Am.  Rep.  394), 

371. 
New    Orleans    v.    Abagznatto    (62 

Fed.  Rep.  240,  26  L.  R.  A.  329), 

322. 
New  Orleans  v.  Clark    (95  U.  S. 

644),  273,  275,  276. 
New   Orleans   v.   Finer ty    (27   La. 

Ann.  681,  21  Am.  Rep.  569),  193. 


Ixvi 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


New  Orleans  v.  Morris   (105  U.  S. 

600),  97. 
New  Orleans  v.  New  Orleans,  etc. 

Co.  (35  La.  Ann.  548) ,  114. 
New  Orleans  v.   Stafford    (27  La. 

Ann.  417,  21  Am.  Rep.  561),  59. 
New  Orleans  v.  Water-works   (142 

U.  S.  79),  114. 
New  Orleans  Gas  Co.  v.  Hart   (40 

La.  Ann.  474,  8  Am.  St.  544),  50. 
New  Orleans  Gas  Co.  v.  Louisiana 

L.  Co.  (115  U.  S.  650),  95. 
New  Orleans  G.,  etc.  Co.  v.  New 

Orleans  (42  La.  188),  94. 
New  Orleans  M.  &  T.  Co.  v.  Eller- 

man  (105  U.  S.  166),  262. 
New  Orleans,  etc.  Ry.  Co.  v.  Dunn 

(51  Ala.  128),  227. 
New  Orleans  Water  Works  v.  New 

Orleans  (164  U.  S.  471),  144,  146. 
Newport  v.  Horton  (22  R.  I.  196) , 

265. 
New  Providence  v.  Halsey  (117  U. 

S.  336),  245. 
New  Shoreham  v.  Ball   (14  R.  I. 

566),  46. 
Newsome  v.  Cocke  (44  Miss.  352,  7 

Am.  Rep.  686),  200. 
Newson  v.  Galveston  (76  Tex.  559, 

7  L.  R.  A.  797),  59. 
Newton  v.  Belger  (143  Mass.  598), 

90. 
Newton  v.  Perry  (163  Mass.  319), 

100. 
New  York  v.  Bailey  (2  Denio,  433), 

313. 
New  York  Bank  v.  Grace  (102  N.  Y. 

313) ,  251. 

New  York  R.  Co.  v.  City  of  Water- 
bury  (55  Conn.  19),  136. 
New  York,  etc.  R.  Co.  v.  Long  (69 

Conn.  424),  104,  106. 
New  York,   etc.   R.   Co.,   In  re,  v. 

Metropolitan  Gas  Co.   (63  N.  Y. 

326),  4. 
Nichols  v.  Ann  Arbor  &  Y.  St  Ry. 

Co.  (87  Mich.  361),  74. 


Nichols   v.    Bridgeport    (23   Conn. 

189),  99. 
Nichols   v.   City   of    St.    Paul    (44 

Minn.  494),  342,  347. 
Nichols  v.  Duluth  (40  Minn.  389), 

360. 
Nichols  v.  McLean   (101  N.  Y.  526, 

64  Am.  Rep.  730),  193,  194. 
Nichols  v.  Walter   (37  Minn.  264), 

295. 
Nickodemus  v.   East  Saginaw    (25 

Mich.  456) ,  218. 
Nicoulin  v.   Lowery    (49  N.   J.  L. 

391),  52. 
Nightingale,    Petitioner    (11    Pick. 

168),  163. 
Niles  v.  Muzzy  (33  Mich.  61,  20  Am. 

Rep.  670),  175,  183. 
Xiles    Water-works    v.    Niles     (59 

Mich.  311),  36,  253. 
Nisbit  v.  Atlanta  (97  Ga.  650),  328. 
Xivens  v.  Rochester  (76  N.  Y.  619), 

313. 
Nixon  v.  Campbell   (106  Ind.  47), 

236. 
Noble  v.  St.  Albans   (56  Vt  522), 

354. 
Nolan  v.  King  (97  N.  Y.  565) ,  340, 

346. 
Noonan  v.  Albany  (79  N.  Y.  470), 

356. 
Noonan    v.    Stillwater    (33    Minn. 

198),  124,  344,  345. 
Norris  v.  Staps   (1617,  Hob.  210), 

148. 

Norris  v.  Waco  (57  Tex.  635),  277. 
Norristown  v.  Fitzpatrick    (94  Pa. 

St.  121),  265. 
Norristown   v.  Moyer    (67  Pa.   St. 

355),  346. 

North   Birmingham  v.  Colderwood 
(89  Ala.  247,  18  Am.  St.  105), 

145. 
Norfleet   v.    Cromwell    (70   N.    C. 

634),  101. 
Northampton    Bridge    Case     (116 

Mass.  442),  100. 


TABLE  OP   CASES   CITED. 


Ixvii 


[REFERENCES  ARE  TO  PAGES.] 


Northern  Bank  v.  Porter  Tp.  (110 

U.  S.  608),  244. 

Northern  Central  R.  Co.  v.  Balti- 
more (21  Md.  93),  77. 
Northern    Liberties    v.    St.    John's 

Church  (13  Pa.  St.  104),  122. 
N.  P.  R.  Co.  v.  Colo.  Postal  Tel. 

Cable  Co.  (30  Colo.  133),  104. 
Northern  Trans.  Co.  v.  Chicago  (99 

U.  S.  635),  359,  360. 
North  Hempstead  v.  Hempstead  (2 

Wend.  109,  110),  21,  280. 
North   Hudson  Co.  R.   Co.   v.  Ho- 

boken  (41  N.  J.  L.  81),  158. 
No.  Mo.  R.  Co.  v.  Gott  (25  Mo.  540) , 

105. 
No.  Mo.  R.  Co.  v.  McGuire  (49  Mo. 

490) ,  276. 
North  Vernon  v.  Voegler  (103  Ind. 

314),  355. 
Northway  v.  Sheridan   (111  Mich. 

18),  186. 

Northwestern  Lumber  Co.  v.  Aber- 
deen (22  Wash,  404),  223. 
Northwestern  Union  Packet  Co.  v. 

Shaw  (37  Wis.  655,  19  Am.  Rep. 

781),  212. 
North  Mo.  Ry.  Co.  v.  McGuire  (49 

Mo.  490),  40. 
North  Yarmouth  v.  Skilling  (45  Me. 

133,  71  Am.  Dec.  530),  257. 
Norton  v.  New  Bedford  (166  Mass. 

48),  314. 
Norton   v.    Dyersburg    (127   U.    S. 

160) ,  226,  230. 

Norton  v.  Nye  (56  Me.  211) ,  307. 
Norton  v.  Peck  (3  Wis.  714),  6. 
Norton   v.   Shelby  Co.    (118   U.   S. 

425),  188. 
Norwich   v.   Hampshire    (13   Pick. 

60),  273. 
Norwich  G.  L.  Co.  v.  Norwich,  etc. 

(25  Conn.  20),  95. 

O. 

Oakland  v.  Carpenter  (13  Cal.  540), 
91. 


O'Brien   v.   New   York    (15   N.   Y. 

Supp.  520),  313. 
O'Brien  v.  St.  Paul  (25  Minn.  331), 

309,  354,  360. 
O'Connel  v.  Chicago,  etc.  Ry.  Co. 

(184  111.  308),  74. 
O'Connor  v.  St.  Louis,  etc.  R.  Co. 

(56  la.  735) ,  75. 
O'Gorman    v.    Morris     (26    Minn. 

267),  341. 
O'Hara  v.  State   (112  N.  Y.  146), 

275. 
O'Hare  v.  Parker  River   (1  N.  D. 

279),  137. 

O'Leary  v.   Board  of  Commission- 
ers   (79   Mich.   281,   19   Am.    St 

169,  7  L.  R.  A.  170),  313,  327. 
O'Reilley  v.   Kingston    (114  N.  Y. 

439),  120. 

Oats  v.  Walls  (28  Ark.  244),  307. 
Oberg,  In  re   (21  Oreg.  406,  14  L. 

R.  A.  577),  287. 
Odell   v.   Atlanta    (97  Ga.  670,  25 

S.  E.  173),  51. 
Odell  v.   Schroeder    (58  111.  353), 

323. 

Odiorne  v.  Wade  (5  Pick.  421),  67. 
Ogden    v.    McLaughlin     (5    Utah, 

387),  49. 
Ogden  v.  Raymond  (22  Conn.  379, 

59  Am.  Dec.  429),  177. 
Ogg  v.  Lansing    (35  Iowa,  495,  14 

Am.  Rep.  499),  328. 
Oil  City  v.  Oil  City  Boiler  Works 

(152  Pa.  St.  348),  116. 
Oklahoma   v.    Hill    (Okl.   50   Pac. 

243),  317. 

Olcott    v.    Supervisors    (16    Wall. 
678),  230. 

Old  Colony  Ry.  Co.  v.  Farmington 

Water  Co.   (153  Mass.  561,  13  L. 

R.  A.  333),  102. 
Oliver    v.    Worcester     (102    Mass. 

489) ,  97,  330,  351. 
Olmstead  v.  Morris  Aqueduct   (47 

N.  J.  L.  328),  114. 


Ixviii 


TABLE  OP   CASES  CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Olmsted  v.  Dennis  (77  N.  Y.  378), 

198. 

Olney  v.  Harvey  (50  111.  453),  279. 
Olney  v.  Pierce  (1  R.  I.  292) ,  181. 
Olson  v.  Chippewa  Falls  (71  Wis. 

558),  340. 
Omaha  Water  Co.  v.  Omaha   (147 

Fed.  1),  92. 
Omaha  v.  Olmstead  (5  Neb.  446), 

64. 
Omaha  v.  Richards  (49  Neb.  244), 

331,  341,  355. 
Onset  Ry.  Co.  v.  Co.  Com'rs   (154 

Mass.  395),  72,  75. 
Opelousas  v.  Andrus    (37  L.  Ann. 

699),  135. 
Opinion   of  the   Justices    (81  Me. 

602,  18  Atl.  291),  251. 
Opinion  of  the  Justices  (150  Mass. 

392,  8  L.  R.  A.  487),  84. 
Opinion  of  Justices  (167  Mass.  599, 

46  N.  E.  118),  187. 
Opinion    of    Justices     (145    Mass. 

587),  180. 

Ord  v.  Nash  (50  Neb.  355),  344. 
Oregon  v.  Jennings  (119  U.  S.  74), 

245. 
Oregon  St.  Nav.  Co.  v.  Winsor  (20 

Wall.,  U.  S.,  64) ,  214. 
Orlando  v.  Pragg  (31  Fla.  Ill,  34 

Am.  St.  17) ,  328. 
Orth  v.  Milwaukee  (59  Wis.  336), 

348. 
Osborne  v.  Adams  Co.    (106  TJ.  S. 

181,  109  U.  S.  1),  232. 
Osborne  v.  Bank  of  TJ.  S.  (9  Wheat. 

738,  861),  20. 
Oshkosh   v.    State    (59  Wis.   425), 

372. 

Otis  v.  Stockton  (76  Me.  506),  42. 
Otoe  Co.  v.  Baldwin  (111  U.  S.  1), 
227. 

Ottawa  v.  Carey   (108  U.  S.  110), 
227,  232,  237. 

Ottumwa  v.  Chinn  (75  Iowa,  151), 
55. 


Ould  v.  Richmond   (23  Gratt.  464, 

14  Am.  Rep.  139),  113. 
Overseers  of  the  Poor,  etc.  v.  Sears 

(22  Pick.  122),  21. 
Overton  Bridge  Co.  v.  Means   (33 

Neb.  857,  51  N.  W.  240,  29  Am. 

St.  514),  5. 
Owens  v.  City  of  Lancaster    (182 

Pa.  St.  257,  38  Atl.  858),  359. 
Owners  v.  Mayor  (15  Wend.  374), 

101. 
Owners  v.  People    (113  111.  296), 

282,  299. 

Po 

Pacific  Ry.  Co.  v.  Leavenworth  (1 

Dill.  C.  C.  393),  77. 
Packwood  v.  Kittitas  Co.  (15  Wash. 

88,  33  L.  R.  A.  673),  235. 
Paddock    v.    Symonds     (11    Barb. 

117) ,  222. 
Palestine  v.  Barnes  (50  Tex.  538), 

5. 
Palmer  v.  Concord   (48  N.  H.  211, 

97  Am.  Dec.  605),  322,  323. 
Palmer  v.  Danville   (158  111.  156), 

151. 
Palmer  v.  Danville  (166  111.  42,  46 

N.  E.  629),  121. 
Palmer  v.  Helena    (19  Mont.  61), 

250,  251. 
Palmer  v.   Stumph    (29  Ind.  329), 

120. 
Palmyra  v.  Morton   (25  Mo.  594), 

120. 
Pana  v.  Bowler   (107  U.  S.  529), 

234,  243. 

Paret  v.  Bayonne  (39  N.  J.  L.  559) , 
45. 

Parish  v.  St.  Paul  (84  Minn.  426) , 
199,  291. 

Park  Co.  v.  O'Connor  (86  Ind.  531), 
97. 

Park  Com'rs  v.  Mayor    (29  Mich. 
347) ,  266. 

Parker  v.  Challis  (9  Kan.  155),  120. 


TABLE  OF   CASES   CITED. 


Ixix 


[REFERENCES  ARE  TO  PAGES.] 


Parker  v.  Dakota  Co.  (4  Minn.  59, 

Gil.  39),  193. 
Parker  v.  Mill  Dam  Co.    (20  Me. 

353,  37  Am.  Dec.  56),  110. 
Parkersburg   v.   Brown  (106  U.  S. 

487),  229,  232. 

Parkersburg   Gas  Co.   v.   Parkers- 
burg  (30  W.  Va.  435),  84. 
Parks   v.    Ross    (11   How.,   U.    S., 

362),  208. 
Parrott   v.    Bridgeport    (44   Conn. 

180,  3  L.  R.  A.  265) ,  364. 
Parrott  v.  Shaubhut  (5  Minn.  331), 

307. 
Parsons  v.  Jackson  (99  U.  S.  434), 

240. 
Parsons    v.    Pettingell    (11    Allen 

507),  100. 
Parsons  v.  United  States   (167  U. 

S.  234),  200,  201. 
Passaic  v.  Paterson  Bill  Posting  Co. 

(72  N.  J.  L.  285),  54. 
Passaic,  In  re  (54  N.  J.  L.  156,  23 

Atl.  517),  294. 
Patch    v.   Covington    (17   B.   Mon. 

722,  66  Am.  Dec.  186),  325. 
Paterson  v.  Society  for  Useful  Man- 
ufacturers (24  N.  J.  L.  385),  25. 
Patten    Paper    Co.    v.    Kaukauna 

Water  Co.  (90  Wis.  370,  28  L.  R. 

A.  443),  100. 
Patterson  v.  Society   (24  N.  J.  L. 

385),  122. 
Patton  v.  Vaughan  (39  Ark.  211), 

200. 

Paul  v.  Detroit  (32  Mich.  108),  107. 
Paul  v.  Gloucester  Co.    (50  N.  J. 

L.  585),  285,  289. 
Paul   v.   Kenosha    (22  Wis.   266), 

215. 
Paulson  v.   Pelican    (79  Wis.  445, 

48  N.  W.  715),  347. 
Paulson  v.  Portland  (149  U.  S.  30), 

116. 
Paxson  v.  Sweet  (13  N.  J.  L.  196) , 

347. 


Paxton  &  Hershy  Co.  v.  Farmers', 

etc.  Co.  (45  Neb.  884,  29  L.  R.  A. 

853) ,  102,  104. 
Paxton  v.  Sweet  (30  N.  J.  L.  196), 

153. 
Payne  v.  Pavey  (29  La.  Ann.  116), 

307. 
Pea  body  v.  West.  Water  Works  Co. 

(37  Atl.  807),  84. 
Pearsall  v.  Eaton  Co.   Sup'rs    (74 

Mich.  558,  4  L.  R.  A.  193),  80. 
Pease  v.  Cornish  (19  Me.  191),  223. 
Peay  v.  Little  Rock  (32  Ark.  31), 

121. 
Peck  v.  Rochester   (3  N.  Y.  Supp. 

872),  137. 

Peck  v.  Smith  (1  Conn.  103) ,  70. 
Pedrick  v.  Bailey  (12  Gray,  161), 

163. 
Peik  v.  Chicago,  etc.  R.  Co.  (94  U, 

S.  164),  5. 
Pekin  v.  McMahon  (154  111.  141,  27 

L.  R.  A.  206),  331. 
Pekin  v.  Reynolds   (31  111.  529,  28 

Am.  Dec.  244),  222. 
Pell  v.  Newark   (40  N.  J.  L.  71), 

297. 
Pendleton  Co.  v.  Amy  (13  Wall.,  U. 

S.,  297),  238. 

Pennie  v.  Reis  (132  U.  S.  464),  269. 
Pennsylvania    Co.   v.   Chicago    (81 

Fed.  317),  323. 
Pennsylvania   Co.   v.   Horton    (132 

Ind.  187),  155. 
Pennsylvania  Hall,  In  re  (5  Pa.  St. 

204) ,  276. 

Pennsylvania  Ry.  Co.  v.  Philadel- 
phia (47  Pa.  St.  189),  227. 

Pentland  v.  Keep  (41  Wis.  490), 
67. 

People  v.  Albertson  (55  N.  Y.  50), 
259,  265,  266. 

People  v.  Arguello  (37  Cal.  524), 
252. 

People  v.  Armstrong  (73  Mich.  288, 
16  Am.  St.  578),  147. 


TABLE  OF   CASES   CITED. 


[REFEEENCES  AKE  TO  PAGES.] 


People  v.  Barnett  Tp.  (100  111.  332), 

198. 
People  v.  Bartlett  (6  Wend.,  N.  Y., 

422),  197. 
People  v.  Batchellor  (53  N.  Y.  128, 

13  Am.  Rep.  480) ,  274,  275,  365. 
People  v.  Bennett   (83  Mich.  457), 

49. 
People  v.  Bennett   (29  Mich.  451), 

5,  257. 
People  v.  Board  of  Co.  Com'rs  (129 

N.  Y.  395,  14  L.  R.  A.  624),  366. 
People  v.  Board  of  Supervisors  (27 

Cal.  655),  139. 

People  v.  Board  (50  Cal.  561),  274. 
People   v.   Bogart    (3   Park.   Crim. 

Rep.  143),  195. 
People  v.  Bond  (10  Cal.  563),  270, 

271. 
People  v.  Brisbane   (76  N.  Y.  558, 

32  Am.  Rep.  337),  326. 
People  v.  Brooklyn  (106  N.  Y.  64), 

202. 
People    v.    Brooklyn    Council     (22 

Barb.,  N.  Y.,  404),  366. 
People  v.  Brooklyn  Heights  R.  Co. 

(172  N.  Y.  90),  104. 
People  v.  Broom   (138  N.  Y.  95,  20 

L.  R.  A.  81),  367. 
People    v.    Bruennemer     (168    111. 

482),  368. 

People  v.  Butte  (4  Mont.  174),  20. 
People  v.  C.  P.  R.  Co.  (43  Cal.  398), 

287. 
People  v.  Cahill   (188  N.  Y.  489), 

178. 
People  v.  Campbell  (72  N.  Y.  496), 

41. 
People  v.  Carpenter  (24  N.  Y.  86), 

368. 
People  v.  Carrique   (2  Hill,  N.  Y., 

93) ,  184. 
People  v.  Chicago  (51  111.  17,  2  Am. 

Rep.  278),  229,  274. 
People  v.  Chenango  County  (11  N. 

Y.  563),  363. 


People  v.  Clark  (70  N.  Y.,  518),  22, 

369. 
People  v.  Cline   (63  111.  394),  234, 

238. 

People  v.  Coler  (166  N.  Y.  1),  258. 
People  v.  Commissioners  of  High- 
ways   (130  111.  482,   6  L.   R.   A. 

161),  362,  363. 
People  v.  Common  Council   (77  N. 

Y.  503,  33  Am.  Rep.  659),  186. 
People  v.  Cooper  (83  111.  585),  282, 

289,  300. 
People  v.  Cratty  (93  111.  180),  128. 

129,  362. 
People  v.  Creiger  (138  111.  401,  28 

N.  E.  812),  153. 
People  v.  Daytou    (55  N.  Y.  367), 

276. 
People  v.  Desmond  (186  N.  Y.  232), 

120. 
People  v.  Detroit   (18  Mich.  338), 

366. 
People  v.  Detroit   (28  Mich.  228), 

229,  258,  266,  274. 
People  v.  Draper   (15  N.  Y.  532), 

25,  265,  266. 

People  v.  Dwyer  (90  N.  Y.  402),  41. 
People  v.  Fairbury    (51  111.  149), 

366. 
People  v.  Field  (58  N.  Y.  491) ,  268, 

370. 

People  v.  Flagg  (17  N.  Y.  584),  40. 
People  v.  Flagg  (46  N.  Y.  401),  229, 

274,  365. 

People  v.  Farnum  (35  111.  562),  23. 
People  v.  Freeman  (80  Cal.  233,  13 

Am.  St.  122),  178. 
People  v.  French    (52  Hun,  N.  Y., 

464),  180. 
Peopel  v.  French   (119  N.  Y.  502), 

204. 
People  v.  Green    (58  N.  Y.  295), 

184,  186. 
People  v.  Gordon   (81  Mich.  306), 

162. 
People  v.  Governor  (29  Mich.  320, 

18  Am.  Rep.  89) ,  363. 


TABLE  OF   CASES   CITED. 


Ixxi 


[REFERENCES  ARE  TO  PAGES.] 


People  v.  Hager  (52  Cal.  171),  116. 
People  v.  Haines   (49  N.  Y.  587), 

117. 
People  v.  Hanrahan  (75  Mich.  611, 

4  L.  R.  A.  751),  131,  149. 
People  v.  Harper  (91  111.  357),  274. 
People  v.  Healy  (231  111.  629),  200. 
People  v.  Hechst   (105  Cal.  621,  27 

L.  R.  A.  203),  188,  190. 
People  v.  Henshaw  (76  Cal.  436,  18 

Pac.  413),  295. 

People  v.  Higgins  (15  111.  110) ,  200. 
People  v.  Hoffman  (116  111.  587,  56 

Am.  Rep.  793) ,  165,  289. 
People  v.  Holden  (82  111.  93),  236. 
People  v.  Hurlbut    (24  Mich.  44), 

6,  81,  258,  261,  264,  267,  269. 
People  v.  Ingersoll   (58  N.  Y.  1), 

268. 
People  v.  Johnson    (100  111.  537), 

221. 
People  v.  K.  &  M.  T.  R.  Co.    (23 

Wend.  193),  369. 
People  v.  Kelly   (5  Abb.  New  Cas. 

383),  275. 
People  v.  Kerr  (27  N.  Y.  188),  74, 

262. 

People  v.  Killduff  (15  111.  492) ,  204. 
People  v.  Lake  Co.   (33  Cal.  487), 

283. 
People  v.  Lawrence  (82  Cal.  182), 

64. 
People  v.  Leonard  (73  Cal.  230,  14 

Pac.  Rep.  853),  182. 
People  v.  Little  (86  Mich.  125),  154. 
People  v.  Londoner  (13  Colo.  303,  6 

L.  R.  A.  444),  301,  368. 
People  v.  McCormick  (106  111.  184), 

368. 
People  v.  McFadden  (81  Cal.  489), 

281,  299. 
People  v.  McKinney  (52  N.  Y.  374), 

181. 
People  v.  Mahaney  (13  Mich.  481), 

265,  266. 
People  v.  Marin  Co.  (103  Cal.  223) , 

68. 


People  v.  Markley  (166  111.  48),  116. 
People  v.  May  (9  Colo.  80,  13  Am. 

&  Eng.  Corp.  Cas.  307),  247,  248. 
People  v.   Mayor    (82  N.  Y.  491), 

199. 

People  v.  Mayor  (15  Md.  376),  265. 
People  v.  Mayor  (4  N.  Y.  419),  113, 

276. 

People  v.  Mead  (24  N.  Y.  114),  363. 
People  v.  Miller    (24  Mich.  458,  9 

Am.  Rep.  131),  194. 
People  v.  Morris    (13  Wend.  325, 

327),  2,  6,  269,  270. 
People  v.  Morrow    (21  Wend.,  N. 

Y.,  563) ,  191. 
People   v.    Mulholland    (82   N.   Y. 

324),  157. 
People  v.  Murray   (57  Mich.  396), 

131. 

People  v.  Nally  (49  Cal.  478),  257. 
People  v.  New  York  (2  Hill,  N.  Y., 

9),  372. 
People  v.  New  York  (92  N.  Y.  491), 

199. 

People  v.  New  York  Infants'  Asy- 
lum  (122  N.  Y.  190,  10  L.  R.  A. 

381),  366. 
People  v.  Nortrand  (46  N.  Y.  378), 

188. 
People  v.  Parker  (231  111.  478) ,  44, 

45. 

People  v.  Oldtown  (88  111.  202) ,  234. 
People  v.  Pike  (197  111.  449),  23. 
People  v.  Provines     (34  Cal.  518), 

196. 

People  v.  Porter  (6  Cal.  26),  198. 
People  v.  Power  (25  111.  169),  268. 
People  v.  Rice   (129  N.  Y.  449,  14 

L.  R.  A.  643),  366. 
People  v.  Richardson   (4  Cow.,  N. 

Y.,  91,  109),  369. 

People  v.  Riverside  (70  Cal.  461), 

277. 

People  v.  Robb  (126  N.  Y.  180),  199. 
People  v.  Rochester  (44  Hun,  N.  Y., 
166) ,  156. 


Ixxii 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


People  v.  Rogers    (118  Cal.  393), 

182,  197. 
People  v.   Salem    (20  Mich.  452,  4 

Am.  Rep.  400),  230. 
People  v. -Schroeder  (76  N.  Y.  160), 


People  v.  Shepard  (36  N.  Y.  285), 

266. 

People  v.  Smythe  (28  Cal.  21),  194. 
People  v.  South  Mich.  Ry.  Co.    (3 

Mich.  496),  112. 

People  v.  Spencer  (55  N.  Y.  1),  234. 
People  v.   Spring  Valley    (129  111. 

169),  369. 

People  v.  State  Board  of  Canvass- 
ers   (129  N.  Y.  360,  14  L.  R.  A. 

646),  363. 
People  v.  St.  Bd.  of  Com.   (129  N. 

Y.  360),  186. 

People  v.    State  Board  of  Educa- 
tion (49  Cal.  684),  87. 
People  v.  State  Treasurer  (23  Mich. 

499),  230. 
People  v.  Stevens  (5  Hill   (N.  Y.) 

616),  363. 
People  v.  Stuart  (74  Mich.  411,  16 

Am.  St  644),  199. 
People  v.  Sturtevant  (9  N.  Y.  263, 

59  Am.  Dec.  536) ,  176. 
People   v.    Supervisors    (70   N.   Y. 

228) ,  275. 

People  v.  Swift  (31  Cal.  26),  42. 
People  v.  Tax  Com'rs    (174  N.  Y. 

417),  259. 
People  v.  Thatcher  (55  N.  Y.  525), 

368. 
People  v.  Thompson  (98  N.  Y.  6), 

102.. 
People  v.  Township  Bd.  (11  Mich. 

222),  175. 
People  v.  Treasurer  (36  Mich.  416), 

201. 

People  v.  Vilas  (36  N.  Y.  459),  191. 
People  v.  Wagner  (86  Mich.  594,  24 

Am.  St.  141),  58,  131. 
People  v.  Waite  (70  111.  25) ,  369. 


People  v.   Walsh    (96  111.  232,  36 

Am.  Rep.  135),  262. 
People  v.  Warfield    (20  111.  160), 

235. 

People  v.  Wiant  (48  111.  263),  235. 
People  v.  Williams  (145  111.  573,  24 

L.  R.  A.  492),  367. 
People  v.  White   (24  Wend.  520), 

187. 
People  v.  Whitlock  (92  N.  Y.  191), 

202. 
People  v.  Whipple  (41  Mich.  548), 

367. 

People  v.  Wood  (71  N.  Y.  371),  223. 
People  v.  Wright  (70  111.  388) ,  282, 

297. 
People  v.  Yonkers  Board  of  Health 

(140  N.  Y.  1,  23  L.  R.  A.  481), 

372. 
Peoria  v.  Simpson  (110  111.  294,  51 

Am.  Rep.  683),  345. 
Peoria  Gas  L.  Co.  v.  Peoria  R.  Co. 

(146  111.  372,  21  L.  R.  A.  373), 

110. 

Perin  v.  Carey  (24  How.  645),  47. 
Perry  v.  John  (79  Pa.  St.  412),  337. 
Perry  v.  Keene  (56  N.  H.  514),  232. 
Perry  v.  Worcester  (6  Gray,  544,  66 

Am.  Dec.  431),  349,  353,  354,  357. 
Perry  Co.  v.  Conway  Co.   (52  Ark. 

430,  6  L.  R.  A.  665) ,  280. 
Perkins  v.  Fayette    (68  Me.  152), 

338. 
Perkins  v.  New  Haven  (53  Conn. 

214),  265,  323. 
Peters  v.  Fergus  Falls   (35  Minn. 

549),  337. 
Peters  v.  Lindsburg  (40  Kan.  654), 

324. 
Petersburg  v.  Applegarth  (28  Grat. 

343,  26  Am.  Rep.  357) ,  320. 
Peterson  v.  Mayor  (17  N.  Y.  449), 

216. 
Peterson  v.  New  York  (194  N.  Y. 

437),  39. 
Pettengill  v.  Yonkers    (116  N.  Y. 

558),  313,  340. 


TABLE  OF   CASES   CITED. 


Ixxiii 


[REFERENCES  ARE  TO  PAGES.] 


Pettigrew   v.   Evansville    (25   Wis. 

223),  105. 
Pettit   v.   Rousseau    (15   La.   Ann. 

239),  194. 
Phelan    v.    Granville    (140    Mass. 

386),  192. 
Ph  >lps  v.  Mayor  of  New  York  (112 

N.  Y.  216,  2  L.  R.  A.  625),  218. 
Phila.    v.    Burial    Ground    Society 

(178  Pa.  St.  533),  121. 
Philadelphia  v.  Field   (58  Pa.  St. 

320) ,  273. 
Philadelphia    v.    Fox    (64    Pa.    St. 

180) ,  261,  263. 
Philadelphia  v.  P.  &  R.  R.  Co.  (58 

Pa.  St.  253),  96. 
Philadelphia   v.   Rule    (93   Pa.    St. 

15),  121. 
Phillips,  Matter  of  (60  N.  Y.  16), 

117. 
Phillips  v.  Denver  (19  Colo.  189,  41 

Am.  St.  230),  147,  150,  151. 
Phillips  v.  Ritchie  County   (31  W. 

Va.  477),  336. 
Phipps  v.  W.  Md.  R.  Co.   (66  Md. 

319),  74. 
Phoenix  Iron  Co.  v.  Com.  (113  Pa. 

St.  563),  363. 
Pickett  v.   School  Dist.    (25  Wis. 

551),  175. 

Pierce  v.  Drew  (136  Mass.  75),  76. 
Pierce  v.  New  Bedford  (120  Mass. 

534,  37  Am.  Rep.  387),  321. 
Pierie  v.  Philadelphia  (139  Pa.  St. 

573,  21  Atl.  90),  191. 
Pimentall  v.  San  Francisco  (21  Cal. 

352),  215. 
Pine  Grove  Tp.  v.  Talcott  (19  Wall. 

666),  230. 
Pinkham   v.  Topsfield    (104  Mass. 

78),  347. 
Piollet  v.  Simmers  (106  Pa.  St.  95, 

51  Am.  Rep.  496),  341. 
Pitts  v.  Opelika  (79  Ala.  527),  137. 
Pittsburg    v.    Reynolds     (48    Kan. 

360,  29  Pac.  757) ,  138. 


Pittsburg,  etc.  Co.  v.  Benwood  Iron 

Works  (31  W.  Va.  710,  2  L.  R.  A. 

680) ,  101. 
Pittsburg,  etc.  R.  Co.  v.  Bruce  (102 

Pa.  St.  23),  100. 
Pittsburg,    etc.    R.    Co.    v.    Crown 

Point  (146  Ind.  421),  155. 
Pittsburg,   etc.   R.   Co.   v.   Keokuk, 

etc.  R.  Co.   (131  U.  S.  371),  214. 
Pittsburg,  Ft.  Wayne  &  C.  R.  Co.  v. 

Peet  (152  Pa.  488),  105. 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  (21 

111.  516),  75. 
Pitzman  v.  Freeburg  (92  111.  Ill), 

227. 
Place  v.  Providence   (12  R.  I.  1), 

371. 
Platteville  v.  Galena  (43  Wis.  493), 

233. 
Platteville  v.  McKennan   (54  Wis. 

487) ,  145. 
Pleasant  Hill  v.  Dasher   (120  Mo, 

675),  124. 
Plimpton  v.  Somerset  (33  Vt.  283), 

276. 
Pointdexter  v.   Greenhow    (114  U. 

S.  270),  143. 
Police     Com'rs     v.     Louisville     (3 

Bush,  Ky.,  597),  266. 
Police  Com'rs  v.  St.  Louis  Co.  Ct. 

(34  Mo.  546),  269. 
Police  Jury  v.   Britton    (15   Wall. 

566),  221,  222,  225. 
Polk  v.  Tunica  (52  Miss.  422),  224. 
Polack  v.  Trustees   (48  Cal.  490), 

79. 
Pollock    v.    Louisville     (13    Bush, 

221),  323. 
Poplin  v.  Mundell    (27  Kan.  159), 

307. 

Ponca  v.  Crawford  (18  Neb.  551,  28 
Neb.   762,   8  Am.    St.   144),   336, 
343. 
Portage  Co.  v.  Wis.,  etc.  Ry.  Co, 

(121  Mass.  460),  236. 
Portland,  etc.  Ry.  Co.  v.  Hartford 
(58  Me.  23),  236. 


Ixxiv 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Portland,  etc.  Ry.  Co.  v.  Portland 

(14  Oreg.  188,  12  Pac.  265),  262. 
Porter  v.  No.  Mo.  R.  Co.   (33  Mo. 

128),  74. 
Portsmouth      Savings      Bank      v. 

Springfield  (4  Fed.  276),  239. 
Postal  Tel.  Co.  v.  Eaton   (170  111. 

513),  70,  76. 

Post  v.  Pearsall  (22  Wend.  444) ,  66. 
Potter  v.  Douglas  Co.  (87  Mo.  240), 

248. 
Potts  v.  Breen   (167  111.  67,  60  111. 

App.  201,  47  N.  E.  81),  88. 
Powell  v.  Board  of  Education   (97 

111.  375),  37  Am.  Rep.  123),  87. 
Powell   v.    City   of   Madison    (107 

Ind.  106,  8  N.  E.  31),  250,  251. 
Powell  v.  Pennsylvania   (127  U.  S. 

678),  53. 
Powell    v.    St.    Croix    County    (46 

Wis.  210),  218. 
Powell  v.  Wytheville  (Va.,  27  S.  E. 

805) ,  359. 
Powers'    Appeal    (29    Mich.    504), 

101,  103. 
Powers  v.  Council  Bluffs  (50  Iowa. 

197),  355. 
Powers  v.  Grand  Rapids  (98  Mich. 

393,  57  N.  W.  250),  119. 
Prather  v.  Lexington   (13  B.  Mon. 

559,  56  Am.  Dec.  585),  322. 
Pratt  v.  Brown  (135  Cal.  649),  293. 
Pratt  v.  Luther  (45  Ind.  250),  175. 
Pray  v.  Jersey  City  (32  N.  J.  Law, 

394),  335. 
Pray  v.  North  Liberties  (31  Pa.  St. 

69),  115. 
Prentiss  v.  Davis   (83  Maine  364), 

23. 
Presbyterian  Ch.  v.  New  York   (5 

Cowan  538),  91. 

Preston  v.  Boston  (12  Pick.  7),  217. 
Preston  v.  Manvers    (21  U.  C.  Q. 

B.  626),  134. 
Preston  v.  United  States  (37  Fed. 

417),  186. 


Prewitt  v.  Missouri,  etc.  Ry.  Co. 

(134  Mo.  615,  36  S.  W.  667),  155. 
Prince  v.  City  of  Fresno   (88  Cal. 

407),  191. 
Prince  v.  Croker  (166  Mass.  347,  32 

L.  R.  A.  610),  245. 
Prince  v.  Quincy  (105  111.  138),  248, 

249,  253. 
Princess  Co.  Com.  v.  Bladensburg 

(51  Md.  468) ,  277. 
Princeville  v.  Auten   (77  111.  325), 

73. 
Prior,  In  re  (55  Kan.  724,  29  L.  R, 

A.  398),  83. 
Pritchett  v.  Stanislaus  Co.  (73  Cal. 

310),  291. 
Pritz,  Ex  parte  (19  Iowa,  30),  299, 

300,  301. 
Privet  v.  Bickford  (26  Kan.  53,  40 

Am.  Rep.  301),  181. 
Proprietors  of  Mt.  Hope  Cemetery 

v.  Boston    (158  Mass.  509),  37, 

260.  264. 
Protestant    Episcopal    Church    v. 

Anamosa   (76  Iowa,  538,  2  L.  R. 

A.  606),  336. 

Provost  City  v.  Shurtleff  (4  Utah, 

15,  5  Pac.  302),  159. 
Puffer  v.  Orange  (122  Mass.  389,  23 

Am.  Rep.  268),  341. 

Pugh  v.  Little  Rock  (35  Ark.  75), 
221. 

Pumpelly  v.  Green  Bay,  etc.  Co.  (13 
Wall.  166),  105,  110. 

Pumphrey   v.    Baltimore    (47   Md. 
145),  273,  274. 

Purdy  v.  Lansing  (128  U.  S.  557), 

237. 
Putnam  v.   Douglas  Co.    (6  Oreg. 

328,  25  Am.  Rep.  627),  111. 
Putnam  v.  Grand  Rapids  (58  Mich. 

417),  84. 

Pye  v.  Peterson   (45  Tex.  312) ,  60. 
Pyre  v.  Mankato  (36  Minn.  373,  1 
Am.  St.  671),  353. 


TABLE  OP   CASES   CITED. 


Ixxv 


[REFERENCES  ARE  TO  PAGES.] 


Q. 


Quaker  City  Nat.  Bank  v.  Nolan 

Co.  (59  Fed.  660),  246. 
Queen  v.  Atlanta  (39  Ga.  318),  203. 
Queen  v.  Justices  (4  Q.  B.  522,  29 

Moak's  Eng.  Rep.  61),  138. 
Quill  v.  Indianapolis  (124  Ind.  292, 

7  L.  R.  A.  681),  248. 
Quincy  v.  Barker  (81  111.  300),  348. 
Quincy  v.  Chicago,  etc.  Ry.  Co.  (92 

111.  21),  127. 
Quincy,  etc.  Ry.  Co.  v.  Morris  (84 

111.  410) ,  230. 
Quinton  v.  Burton  (61  Iowa,  471), 

348. 
Quong  Woo  (13  Fed.  229),  164. 

R. 

Radcliffe  v.  Brooklyn  (4  N.  Y.  205) , 

72. 
Rahway  Savings  Inst.  v.  Rahway 

(49  N.  J.  L.  384),  364. 
Railroad    Commission    Cases    (116 

U.  S.  307),  5. 
Railroad  Co.  v.  Ellerman   (105  U. 

S.  166),  86. 
Railway  Co.  v.  East  Orange  (41  N. 

J.  L.  127),  155. 
Railway  Co.  v.  Huesen   (95  U.  S. 

465),  52. 
Railway  Co.   v.   Jordan    (113  Ga. 

687),  23. 
Railway  Co.  v.  Ren  wick  (102  U.  S. 

180) ,  105. 
Railway  Co.  v.  Richmond   (96  U. 

S.  521),  151. 
Raleigh  v.  Pease  (110  N.  C.  32,  17 

L.  R.  A.  331),  114,  115,  120,  124. 
Rails  Co.  v.  United  States  (105  U. 

S.  733),  271. 
Ramsey  v.  Riley   (13  Ohio,  157), 

306. 
Randolph  v.  Wood  (49  N.  J.  L.  85), 

292,  295. 
Ranney  v.  Baeder    (50  Mo. 

234. 


Ransom  v.  Boal  (29  Iowa,  68),  97. 
Rathburn  v.  Wirth  (150  N.  Y.  459, 

34  L.  R.  A.  403) ,  180. 
Rathke  v.  Gardner  (134  Mass.  14), 

353. 
Rauch  v.  Chapman  (16  Wash.  568), 

248. 
Ray  v.  Wilson  (29  Fla.  342,  14  L. 

R.  A.  773),  363,  367. 
Ray  Co.  v.  Vansycle  (96  U.  S.  675), 

238. 
Raymond  v.  Fish  (51  Conn.  80,  50 

Am.  Rep.  3),  49. 
Raymond  v.  Lowell  (6  Gush.,  Mass., 

524,  53  Am.  Dec.  57),  337. 
Read  v.    Plattsmouth    (107   U.   S. 

568),  229. 
Reading   v.    Savage    (124   Pa.    St. 

328,  290. 
Reardon  v.  Madison  (73  Ga.  184), 

155. 
Reardon  v.  St.  Louis  County    (36 

Mo.  555) ,  337. 
Reclamation  Dist.  v.  Goloman   (65 

Cal.  635),  116. 
Redwood  Co.  Com'rs  v.  Tower  (28 

Minn.  45),  206. 
Reed  v.  City  of  Madison  (83  Wis. 

171),  342,  345. 
Reed  v.  Northfleld   (13  Pick.  94), 

67. 
Rees  v.  Watertown  (16  Wall.  107), 

98. 
Rees  v.  Watertown   (19  Wall.,  U. 

S.,  107),  365. 
Reeves  v.  Continental  R.  Co.  (152 

Pa.  St.  153,  25  Atl.  517),  291. 
Reeves  v.   Wood  Co.    (8   Ohio   St. 

333),  117. 
Regan  v.  Farmers'  L.  &  Tr.  Co.  (154 

TJ.  S.  362) ,  214. 
Regina  v.  Church  Wardens  (1  App, 

Cas.  611,  35  L.  T.  381),  204. 
Reg.  v.  Rogers  (2  Lord  Raym.  777) , 

64. 
Reilly  v.  Albany  (112  N.  Y.  30,  19 

N.  E.  508),  123. 


Ixxvi 


TABLE  OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES." 


Reinkin    v.    Fuehring     (130    Ind. 

382),  117. 
Reineinan  v.  Covington,  etc.  Ry.  Co. 

(7  Neb.  310) ,  227. 
Reiter  v.  State  (61  Ohio  St.  74,  23 

L.  R.  A.  681),  198. 
Renick    v.    Davenport    (47    Iowa, 

511),  230. 
Reno  Co.  School  Dist.  v.  Shadduck 

(25  Kan.  467) ,  87,  89. 
Renssalaer,  etc.  R.  Co.  v.  Davis  (43 

N.  Y.  137) ,  104. 
Renssalaer   v.   Leopold    (106   Ind. 

29),  80. 
Reusch  v.  Chicago,  etc.  Ry.  Co.  (57 

Iowa,  685),  100. 
Rex  v.  Bower    (1  Barn.  &  Cress. 

585),  198. 

Rex  v.  Burder  (4  T.  R.  778),  198. 
Rex  v.  Commissioners  of  Sewers  (8 

Bam.  &  Cress.  355),  352. 
Rex  v.  Harrison    (3  Burr.  1322), 

133. 

Rex  v.  Jones  (2  Stra.  1146),  198. 
Rex  v.  London  (8  Howell,  St.  Trial, 

1039),  16. 

Rex  v.  Lone  (2  Stra.  920),  198. 
Rex  v.  Maidston    (3  Burr.  1837), 

149. 
Rex  v.  Mayor  (5  Barn.  &  Aid.  692), 

63. 
Rex  v.  Mayor  (2  T.  R.  259,  7  Eng. 

Rul.  Gas.  328),  204. 
Rex  v.  Patteson   (4  B.  &  Ad.  9), 

184. 
Rex  v.  Richardson    (1  Burr.  517, 

538),  199. 

Rex  v.  Saunders  (3  East,  119),  368. 
Rex  v.  Pateman  (2  T.  R.  777),  184. 
Reynolds  v.  Mandain  (4  Harr., 

Del.,  317),  154. 
Rhobidas  v.  Concord  (70  N.  H.  90), 

314,  352. 
Rice  v.  Austin    (19  Minn.  103,  18 

Am.  Rep.  330),  363. 
Rich  v.  Mentz  Tp.  (134  U.  S.  623), 

234. 


Rich  v.  Minneapolis  (37  Minn.  423), 

70. 
Rich   v.   Naperville    (42   111.   App. 

222),  156,  166. 
Richards  v.  Raymond  (92  111.  612, 

34  Am.  Rep.  151),  87,  229. 
Richardson  v.  Heydenfeldt  (46  Cal. 

68),  91. 
Richman    v.    Muscatine    Co.     (77 

Iowa,  513,  4  L.  R.  A.  445),  300. 
Richmond  v.  Long   (17  Gratt.  375, 

94  Am.  Dec.  461),  320. 
Richmond  v.  McGirr  (78  Ind.  192), 

226. 
Richmond  Co.  v.  Lawrence  Co.  (12 

111.  1),  270. 
Richter  v.  Harper   (95  Mich.  221, 

54  N.  W.  768),  140. 
Riddle   v.    Merrimac   River   Locks 

(7  Mass.  169,  5  Am.  Dec.  35),  9. 
Riddell  v.  Proprietors  (7  Mass.  187, 

5  Am.  Dec.  43),  98,  330,  335. 
Rider    v.    Portsmouth    (67   N.    H. 

298),  175. 

Riddick  v.  Amelin  (1  Mo.  5),  20. 
Rideout  v.   Knox    (148  Mass.  368, 

2  L.  R.  A.  81),  49. 
Riggs  v.  Johnson  County  (6  Wall., 

TJ.  S.,  166),  364,  365. 
Ring  v.  Cohoes  (77  N.  Y.  83) ,  339. 
Ripley  v.  Gage  Co.  (3  Xeb.  397) ,  97. 
Rippe  v.  Becker  (56  Minn.  100,  22 

L.  R.  A.  857),  51. 
Ritchie  v.  Griffiths  (1  Wash.  429), 

306,  307. 
Ritchie  v.  People   (155  111.  98,  29 

L.  R.  A.  79),  49. 
Rittenhouse  v.  Mayor  (25  Md.  336), 

93. 
Riverside  v.  MacLain  (210  111.  308), 

68. 
Rivers  v.  Augusta   (65  Ga.  376,  38 

Am.  Rep.  787),  322. 
Road  in  Sterritt  Tp.,  In  re  (114  Pa. 

St.  637),  106. 
Roane  v.  Anderson  (89  Tenn.  259) , 

276. 


TABLE  OP  CASES   CITED. 


Ixxvii 


[REFERENCES  ARE  TO  PAGES.] 


Robbins  v.  Barnum  (1  Pick.  122), 

70. 
Robbins  v.  Milwaukee,  etc.  Co.   (6 

Wis.  637),  111. 
Rober  v.  McWhorter  (17  Va.  214), 

263. 
Robert  v.  Sadler  (104  N.  Y.  229), 

70,  71. 
Robinson's  Case   (131  Mass.  376), 

179. 
Robinson  v.  Franklin    (1  Humph. 

156,  34  Am.  Dec.  625),  59,  127, 

148. 
Robinson  v.  Greenville  (42  Ohio  St. 

625,  51  Am.  Rep.  857),  321,  322. 
Robinson  v.  Jones   (14  Fla.  256), 

369. 
Robinson  v.  Rohr   (73  Wis.  436,  2 

L.  R.  A.  366) ,  305,  335. 
Robinson    v.    Ruggles     (50    Iowa, 

240) ,  218. 
Roby  v.  Sedgwick  (35  Barb.  319), 

23. 
Roby  v.  Sheppard  (42  W.  Va.  286), 

277. 
Rochester  v.  Campbell   (123  N.  Y. 

405,  20  Am.   St.  760),  344,  345, 

348. 
Rochester  v.  Upham  (19  Minn.  108, 

Gil.  78),  56. 
Rochester  v.  West  (164  N.  Y.  510), 

54. 

Rochester  White  Lead  Co.  v.  Roch- 
ester (3  N.  Y.  463),  355. 
Rock    Island    County    v.    United 

States  (4  Wall.,  U.  S.,  435),  365. 
Roderick  v.  Whitson   (51  Hun,  N. 

Y.,  620) ,  156. 
Rodman  v.  Musselman    (12  Bush, 

Ky.,  354,  23  Am.  Rep.  724) ,  374. 
Roe  v.  Kansas  City  (100  Mo.  190), 

344. 
Roeck  v.  Newark  (33  N.  J.  L.  129), 

365. 
Roeller  v.  Ames    (33  Minn.  132), 

373,  374. 


Rogers    v.    Bradshaw    (20    Johns. 

744),  112. 
Rogers  v.  Burlington  (3  Wall.,  U. 

S.,  654),  229,  238. 
Rogers  v.  Morrill  (55  Kan.  737,  42 

Pac.  555),  203. 

Rogers  v.  People  (68  111.  154),  9. 
Rolf  v.  Greenville  (102  Mich.  544), 

347. 
Rollins  v.  Gunnison  Co.  (49  U.  S. 

App.  399,  80  Fed.  682) ,  240. 
Rollins  v.  Lake  Co.   (34  Fed.  Rep. 

845),  248. 
Romero  v.  United  States  (24  Ct.  of 

Cl.  331,  5  L.  R.  A.  69),  190,  193. 
Rooney   v.    Randolph    (128   Mass. 

580),  338. 
Roosevelt  v.  Draper  (23  N.  Y.  318), 

371. 
Roosevelt   Hospital   v.   New   Yorls 

(84  N.  Y.  108),  122. 
Root's  Case  (77  Pa.  St.  276),  111. 
Rose  v.  Farmington  (196  111.  226), 

67. 
Rosenthal  v.  Board  of  Canvassers 

(50  Kan.  129,  19  L.  R.  A.  157), 

365,  366. 

Ross  v.  Winsor  (48  N.  J.  L.  95), 
292,  294,  298. 

Rothschild  v.  Darien  (69  Ga.  503), 
147. 

Rowe  v.  Portsmouth  (56  N.  H.  291), 

358. 

Royce  v.  St.  Louis  (15  Utah,  401), 
317. 

Royce  v.  Salt  Lake  City  (15  Utah, 
401),  328. 

Ruan   Street,  In  re    (132  Pa.   St. 

257),  291. 

Ruffner   v.    Com'rs    (1   Disn.   Oh. 

196),  287. 

Ruggles  v.  Collier  (43  Mo.  353) ,  91. 
Ruggles  v.  Fond  du  Lac   (53  Wis. 

436) ,  218,  362. 
Ruilson  v.  Post  (79  Ind.  567),  87, 


Ixxviii 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Rumsey  v.  N.  T.  &  N.  E.  Ry.  Co. 


(130  N.  Y. 
100. 


3,  15  L.  R.  A.  618), 


Rumsey  Mfg.  Co.  v.  Shell  City  (21 

Mo.  App.  175),  127,  130. 
Rundle  v.  Delaware,  etc.  Canal  (1 

Wall.  Jr.  275,  290),  4. 
Rusher   v.   Dallas    (83   Tex.   151), 

265. 
Rushville  v.  Adams  (107  Ind.  475, 

57  Am.  Rep.  124),  341. 
Rushville  Gas  Co.  v.  Rushville  (121 

Ind.  206,  23  N.  E.  72,  6  L.  R.  A. 

315) ,  173,  225. 
Russell  v.  Chicago,  etc.  R.  Co.  (205 

111.  155) ,  67. 

Russell  v.  Lincoln  (200  111.  511),  68. 
Russell  v.  M'Lellan   (14  Pick.  63), 

18. 
Russell  v.  Mayor    (2  Denio  461), 

100. 
Russell  v.  Men  of  Devon  (2  T.  R. 

672),  21,  335. 
Russell   v.   Place    (94  IT.   S.   606), 

227. 
Rutgers  v.  New  Brunswick  (42  N. 

J.  L.  51),  291,  295. 
Rutherford   v.   Hamilton    (97   Mo. 

543),  120,  295. 
Rutherford    v.    Heddens    (82    Mo. 

388),  293. 
Rychlicki  v.  St.  Louis  (98  Mo.  497) , 

353,  356. 
Ryerson  v.  Brown    (35  Mich.  333, 

24  Am.  Rep.  564),  103. 

S. 

Sackett  v.  New  Albany    (88  Ind. 

473,  45  Am.  Rep.  467),  249. 
Sacramento  v.  California  Stage  Co. 

(12Cal.  132),  58. 

Sacramento  v.  Dillman    (102  Cal. 

107,  36  Pac.  385),  138. 
Sadler  v.  Eureka  Co.  (15  Nev.  44), 

126. 


Safety  Ins.,  W.  &  C.  Co.  v.  Balti- 
more (66  Fed.  140,  25  U.  S.  App. 

166),  92,  261. 
Safety  Ins.,  W.  &  C.  Co.  v.  Mayor 

(66  Fed.  140),  39. 
Safford  v.  Detroit  Bd.  of  Health 

(110  Mich.  81),  364. 
Sagamon  v.  Springfield  (63  111.  66), 

270. 
Sage  v.  Brooklyn   (89  N.  Y.  189), 

111. 

Sage  v.  Lorain  (19  Mich.  137),  305. 
Saginaw  G.  L.  Co.  v.  Saginaw  (28 

Fed.  252),  84,  95,  214. 
Saginaw  v.  Saginaw  Circuit  Judge 

(106  Mich.  32),  37. 
Salamanca  Tp.  v.  Jasper  Co.  Bank 

(22  Kan.  696),  224. 
Salem  Water  Co.  v.  Salem  (5  Oreg. 

30),  249,  253. 
Saleno  v.  City  of  Neosho  (127  Mo. 

627,  27  L.  R.  A.  769),  135,  136, 

253. 
Saline  Co.  Com'rs  v.  Anderson  (20 

Kan.  398,  27  Am.  Rep.  171) ,  193. 
Salisbury  v.  Ithaca   (94  N.  Y.  27), 

344. 
Salt  Lake  City  v.  Hollister  (118  U. 

S.  256) ,  228,  315. 
Saltpetre  Case  (12  Coke.  12),  60. 
Salvin  v.  No.  Brancepeth  Coal  Co. 

(L.  R.  9  Ch.  App.  705),  55. 
Sanborn  v.  Kimball   (64  Me.  140), 

200,  201. 
Sanborn  v.  Neal    (4  Minn.  126,  77 

Am.  Dec.  502),  208. 

Sanborn  v.  Rice  Co.  (9  Minn.  273), 
276. 

San  Diego  v.  San  Diego,  etc.  R.  Co. 
(44  Cal.  10G),  175. 

San  Francisco  Gas  Co.  v.  San  Fran- 
cisco (6  Cal.  190),  127. 

San  Francisco  v.  Calderwood  (31 
Cal.  585  \,  68. 

Santa  Ana  v.  Gildmacher  (133  Cal. 
399),  104. 


TABLE  OF   CASES   CITED. 


Ixxix 


[REFERENCES  ARE  TO  PAGES.] 


Santa  Anna  Co.  v.  San  B.  etc.  (56 

Fed.  339),  94. 
Santo  v.  State  (2  Iowa,  155,  63  Am. 

Dec.  487),  195. 
Sargent  v.  Tuttle  (67  Conn.  162,  34 

Atl.  1028,  32  L.  R.  A.  822),  114. 
Satterfield  v.  Malone  (35  Fed.  Rep. 

445,  1  L.  R.  A.  35),  307. 
Sauer  v.  New  York  (206  U.  S.  536), 

72. 
Sauk  v.  Philadelphia  (8  Phila.,  Pa., 

117),  137. 
Sault  Ste.  Marie  v.  Van  Dusen  (40 

Mich.  429),  224. 

Savannah  F.  and  W.  R.  Co.  v.  Pos- 
tal Tel.  Cable  Co.  (112  Ga.  941), 

104. 
Savannah  v.  Donnelly  (71  Ga.  258) , 

341. 
Savings  Society  v.  Philadelphia  (31 

Pa.  St.  175),  147. 

Sawyer  v.  Adams  (8  Vt.  172),  307. 
Sawyer  v.  Concordia  (12  Fed.  754), 

271. 

Sawyer,  In  re  (124  U.  S.  200),  171. 
Saxton  v.  St.  Joseph  (60  Mo.  153), 

125. 
Scales  v.  Chattahoochee  Co.  (41  Ga. 

225),  9,  337. 
Scanlon  v.   Wedger    (16  L.  R.  A. 

395),  322. 
Schattner  v.  Kansas  City  (53  Mo. 

162),  72. 
Schenly  v.  Com.   (36  Pa.  St.  29), 

117. 
Schipper  v.  Aurora  (121  Ind.  154,  6 

L.  R.  A.  318),  214. 
Schnell  v.  Rock  Island  (232  111.  89) , 

249. 
School  District  v.  Gage   (39  Mich. 

484) ,  373. 
School   District  v.    Smith    (67  Vt. 

566,  32  Atl.  484),  188. 
School  District  v.  Stough   (4  Neb. 

357),  221. 
School    District   v.    Thompson    (5 

Minn.  280),  224. 


School  District  v.  Weber   (75  Mo. 

558),  274. 
School    District    v.    Williams     (38 

Ark.  454),  6. 
School  District  v.  Wood  (13  Mass. 

193),  7,  98. 
Schroeder  v.  Baraboo  (93  Wis.  95, 

67  N.  W.  27),  355,  358. 
Schultz  v.  Milwaukee  (49  Wis.  254, 

35  Am.  Rep.  779) ,  321,  343. 
Schumann  v.  Ft.  Wayne  (127  Ind. 

109,  11  L.  R.  A.  378) ,  58. 
Schumm  v.  Seymour  (24  N.  J.  Bq. 

143),  125. 
Schussler    v.     Hennepin    Co.     (67 

Minn.  412),  315,  316,  317. 
Schwartz  v.  Oshkosh  (55  Wis.  490), 

137. 
Schweizer  v.  Liberty  (82  Mo.  309), 

138. 
Scotland   Co.    v.    Hill    (132   U.   S. 

107),  240. 
Scott   v.    School    District    (67   Vt. 

150),  174. 
Scott  v.  Davenport  (34  Iowa,  208), 

249. 
Scott  v.  Fishbate   (117  N.  C.  265, 

30  L.  R.  A.  696),  195,305. 
Scott  v.  Chicago  (205  111.  281),  187. 
Scott  v.  People  (120  111.  129),  184. 
Scowden's  Appeal  (96  Pa.  St.  422), 

294,  297. 
Scranton's    Appeal     (113    Pa.    St. 

190),  290. 
Scranton  v.  Catterson   (94  Pa.  St. 

202),  340. 
Scranton   v.    Whyte    (148   Pa.    St. 

419,  23  Atl.  1043),  291. 
Screws  v.  Watson    (48  Ala.  628), 

307. 
Scudder  v.  Hinshaw  (134  Ind.  56), 

154. 
Seagraves  v.  Alton    (13  111.  366), 

216. 
Seaman  v.   New  York    (SO  N.  Y. 

239),  331. 
Searcy  v.  Grow  (15  Cal.  117),  182. 


Ixxx 


TABLE  OP   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Searle  v.  Lead   (10  So.  Da.  312), 

360. 
Sears  v.  Crocker   (184  Mass.  586), 

72,  74. 
Seattle  v.  Yesler    (1  Wash.  571), 

229. 
Seben  v.  City  of  Chicago   (165  111. 

371),  331,  342. 
Second  Ward  Sav.  Bank  v.  City  of 

Huron    (80  Fed.  660),  242. 
Sedgwick  v.  Bunker  (16  Kan.  498), 

280. 

Seele  v.  Deering  (79  Me.  343),  315. 
Seeley  v.  Litchfield  (49  Conn.  134, 

44  Am.  Rep.  213),  339. 
Seeley  v.  Westport  (47  Conn.  294), 

218. 
Seely  v.  Pittsburgh  (82  Pa.  St.  360, 

22  Am.  Rep.  760),  120,  121. 
Seibert  v.  Lewis   (122  U.  S.  284), 

271. 
Seifert  v.  Brooklyn  (101  N.  Y.  136), 

356. 
Selleck  v.  Tallman   (93  Wis.  246), 

345. 
Selden    v.    Jacksonville     (28    Fla. 

558),  72,  79. 
Selma  &  Gulf  R.  Co.,  Ex  parte  (45 

Ala.  696,  732) ,  230. 
Senate  Bill,  In  re   (12  Colo.  188), 

259,  267. 
Senate  of  Happy  Home  Club  v.  Al- 

pena  Co.  (99  Mich.  117,  23  L.  R. 

A.  144),  62. 
Sessions  v.  Boykin   (78  Ala.  328), 

363. 

Severin  v.  Cole  (38  Iowa,  463),  109. 
Seybert    v.    Pittsburgh     (1    Wall. 

272),  226. 
Seymour  v.  Turnpike  Co.  (10  Ohio, 

476),  5. 
Seymour   v.   Cummings    (119   Ind. 

148,  5  L.  R.  A.  126),  355. 
Seymour    v.    School    District     (53 

Conn.  502),  373. 
Shad  v.  Crawford    (3  Mete.,   Ky., 

207) ,  265. 


Shadier  v.  Blair  County   (136  Pa. 

St.  488) ,  337. 
Shaefler  v.  Sandusky  (33  Ohio  St. 

246),  348. 
Shafer  v.  Mumma    (17  Md.  331), 

63,  145. 

Shaffel  v.  State  (97  Wis.  377),  64. 
Shane  v.  St.  Paul   (26  Minn.  543), 

218. 
Shannon  v.  Huron   (9  S.  D.  356), 

255. 
Shapleigh  v.  San  Angelo  (167  U.  S. 

654),  35,  45,  270,  280. 
Sharon  R.  Co.'s  Appeal  (122  Pa.  St. 

533),  102. 
Sharpless  v.  Mayor  of  Phila.    (21 

Pa.  St.  147),  229,  231. 
Shaw  v.   Independent   School  Dis- 
trict (40  U.  S.  App.  475,  77  Fed. 

277),  246. 

Shaw  v.  Pickett  (26  Vt.  482),  124. 
Shawnee  Co.  Com'rs  v.  Carter   (2 

Kan.  115),  221. 
Shawneetown    v.    Baker     (85    111. 

563),  36,  42,  45. 
Shawneetown    v.   Mason     (82    111. 

337),  111. 
Shartle  v.  Minneapolis    (17  Minn. 

308,  Gil.  284),  336. 
Shaub  v.   Lancaster    (156  Pa.   St. 

362,  21  L.  R.  A.  691),  135. 
Sheehan  v.  Good  Samaritan  Hospi- 
tal (50  Mo.  155, 11  Am.  Rep.  112), 

122. 
Shelby  v.  Clagett  (46  Ohio  St.  549), 

336. 
Sheldon  v.  Fox    (48  Kan.  356,  16 

L.  R.  A.  257) .  94. 

Sheldon   v.   Kalamazoo    (24   Mich. 
383),  37. 

Sheley  v.  Detroit   (45  Mich.  431), 

117,  120. 
Shelle  v.  Bryden  (114  Pa.  St  147), 

307. 

Shellhouse  v.  State  (110  Ind.  509), 
67. 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Shenels  v.  Borough    (181  Pa.   St. 

191),  127. 
Shepard  v.  People  (40  Mich.  487), 

55. 
Shepard  v.  Pulaski  County  (13  Ky. 

L.  672,  18  S.  W.  15),  351. 
Shepardsou  v.  Milwaukee,  etc.  R. 

Co.   (6  Wis.  605),  112. 
Sheperd  v.  Burkhalter  (13  Ga.  447), 

307. 
Sheperd  v.  Sullivan  (166  IU.  78,  46 

N.  E.  720),  124. 
Sherbourne  v.  Yuba  Co.    (21  Cal. 

113),  328. 
Sheridan  v.  Salem  (14  Oreg.  328), 

336. 
Sherlock  v.  Stuart  (96  Mich.  193, 

21  L.  R.  A.  580),  363. 
Sherman  v.  Butcher   (72  N.  J.  L. 

53),  71. 
Sherman  Co.  v.  Simmons  (109  U.  S. 

735),  245. 
Sherwin  v.  Bugbee   (17  Vt.  337), 

170. 
Sherwood  v.  City   (109  Ind.  410), 

109. 
Sherwood  v.  Rynearson  (141  Mich. 

92),  365. 
Shields  v.  Durham  (118  N.  C.  450), 

328. 
Shipley  v.   Baltimore,  etc.  R.  Co. 

(34  Md.  336),  111. 
Shirk  v.  Pulaski  Co.  (4  Dill.,  U.  S., 

209),  221. 
Short  v.  Maryland    (80  Md.  392), 

180. 
Short  v.  Symes  (150  Mass.  298,  15 

Am.  St.  204),  187. 
Short-Conrad  v.  School  District  (69 

N.  W.  337) ,  31. 

Shove  v.  Larson  (22  Wis.  142),  307. 
Shue  v.  Commissioners    (41  Mich. 

638),  106. 
Shugars  v.  Hamilton  (29  Ky.  Law, 

127),  170,  171. 
Sievers  v.  San  Francisco  (115  Cal. 

648),  312. 


Simins  v.  Hymmes  (121  Ind.  534), 

112. 
Simon  v.  Atlanta   (67  Ga.  618,  44 

Am.  Rep.  729),  327. 
Simon  v.  Northrup   (27  Oreg.  487, 

30  L.  R.  A.  171) ,  262,  273. 
Sinclair  v.  Baltimore  (59  Md.  592), 

339. 
Sinclair  v.  Slawson  (44  Mich.  127), 

307. 
Sinking  Fund  Cases  (99  U.  S.  700), 

263. 
Sinton  v.  Ashbury   (41  Cal.  525), 

275. 
Sioux    City   v.    Weare    (59   Iowa, 

195),  251,  344. 
Sioux  City,  etc.  St.  Ry.  Co.  v.  Osce- 

ola  Co.   (45  Iowa,  168,  52  Iowa, 

26),  240. 
Skaggs   v.   Martinsville    (140   Ind. 

476,  49  Am.  St.  209,  33  L.  R.  A. 

781),  78. 
Skinner  v.  Henderson  (26  Fla.  121, 

8  L.  R.  A.  55),  269. 
Skinner  v.  Lake  View  Ave.  Co.  (57 

111.  151),  108. 
Skinner  v.   Santa  Rosa    (107  Cal. 

464),  235. 
Slaughter  House  Cases   (16  Wall., 

U.  S.,  36),  52. 

Sloane  v.  Beebe  (24  Kan.  343),  117. 
Slingerland  v.  Newark  (54  N.  J.  L. 

62),  221. 

Sloan  v.  State  (8  Blackf.  361) ,  269. 
Smith  v.  Anderson  (33  Minn.  25), 

24. 
Smith  v.  Appleton   (19  Wis.  468), 

270,  272. 

Smith  v.  Boston  (1  Gray,  72),  368. 
Smith  v.  Brown  (59  Cal.  672),  200. 
Smith  v.  Com.  41  Pa.  St  335), 

128. 

Smith  v.  Dedham  (144  Mass.  177), 
94,  253. 

Smith  v.  Duncan  (77  Ind.  92),  91, 
Smith  v.  Gould  (61  Wis.  31),  311. 


Ixxxii 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Smith  v.  Emporia    (27  Kan.  528), 

126. 
Smith,  Ex  parte   (135  Mo.  223,  33 

L.  R.  A.  606),  148,  162. 
Smith,  Ex  parte  (38  Cal.  702),  287. 
Smith  v.  Farrelly  (52  Cal.  77),  218. 
Smith,  In  re  (99  N.  Y.  424),  117. 
Smith  v.  Knoxville  (3  Head,  Term., 

245),  159. 

Smith  v.  Mayor  (88  Tenn.  464),  84. 
Smith  v.  Moore  (90  Ind.  294),  181. 
Smith  v.  Nashville  (88  Tenn.  464, 

7  L.  R.  A.  469),  85. 
Smith  v.  Newbern  (70  N.  C.  14,  16 

Am.  Rep.  766),  30,  31. 
Smith  v.  Philadelphia    (81  Pa.  St. 

38,  22  Am.  Rep.  731),  332. 
Smith  v.  Rochester  (76  N.  Y.  506) , 

314. 
Smith  v.  Seattle    (25  Wash.  300), 

248. 

Smith  v.  Sheely  (12  Wall.  35),  22. 
Smith  v.  Sherry  (50  Wis.  200), 

277. 
Smith  v.  Waterbury  (54  Conn.  174, 

7  Atl.  17),  195. 
Smith  v.  Westcott  (17  R.  I.  366,  13 

L.  R.  A.  217),  257,  263. 
Smith  v.  Whitney  (116  U.  S.  167), 

370. 
Smoot  v.  Wetumpka  (24  Ala.  112) , 

336. 

Snell,  In  re  (58  Vt.  207),  150. 
Snider  v.  St.  Paul  (51  Minn.- 466), 

314. 
Snyder  v.  Albion    (113  Mich.  275, 

71  N.  W.  475),  349. 
Snyder  v.  Rockport    (6  Ind.  237), 

86. 
Society  v.  Paulet  (4  Peters,  U.  S., 

480),  23. 
Society  of  Savings  v.  New  London 

(29  Conn.  174),  230. 
Somerville  v.  Dickerman  (127  Mass. 

272),  45. 
Sommers    v.    Marshfield    (90   Wis. 

59),  344. 


Sonoma  County  Tax  Case  (13  Fed. 

791),  218. 
Soon  Hing  v.  Crowley   (113  U.  S. 

703),  148,  164. 
South  Bend  v.  Martin  (142  Ind.  31, 

29  L.  R.  A.  531),  57. 
So.  Chicago  R.  Co.  v.  Dix  (109  111. 

237),  105. 
So.  Carolina  R.  Co.  v.  Steiner  (44 

Ga.  546),  75. 
South  Cov.  Ry.  Co.  v.  Barry   (93 

Ky.  43,  18  S.  W.  1026),  156. 
So.   Jersey  Tel.   Co.   v.   Woodbury 

(73  N.  J.  L.  276),  134. 
South  Omaha  v.  Powell    (50  Neb. 

798,  70  N.  W.  391),  344. 
South  Park  Com'rs  v.  Williams  (51 

111.  57),  101. 
Southerland  v.   City  of  Goldsboro 

(96  N.  C.  49),  235. 
Southport  v.  Ogden  (23  Conn.  128), 

148,  149. 
Sower  v.  Phila.    (35  Pa.  St.  231), 

127,  128. 

Sowles  v.  Soule  (59  Vt.  131),  218. 
Spangler  v.  San  Francisco  (84  Cal. 

12),  355. 
Spaulding   v.   Andover    (54   N.   H. 

38),  260,  268. 
Spaulding  v.  Lowell   (23  Pick.  71), 

32,  34,  82. 
Spaulding  v.   Peabody    (153  Mass. 

129,  26  N.  E.  421),  84. 
Speakership,  In  re    (15  Colo.  500, 

11  L.  R.  A.  240),  171. 
Speed  v.   Detroit    (100  Mich.  92), 

265. 

Speed  v.  Detroit  (98  Mich.  360,  22 

L.  R.  A.  842),  203. 
Speer  v.  Board   (88  Fed.  749),  22. 
Speirs  v.   Brooklyn    (39  N.   Y.  6), 

317,  322. 

Speir  v.  New  Utrecht    (121  N.  Y. 
420),  66. 

Spencer   v.    Merchant    (125   U.    S. 
345),  116,  119. 


TABLE  OF   CASES   CITED. 


Ixxxiii 


[REFERENCES 

Springfield  v.  Conn.  River  R.  Co. 

(4  Cush.  63),  69. 
Sponogle  v.  Curnow  (136  Cal.  580), 

200. 
Springfield  v.  Edwards  (84  111.  626) , 

251,  252,  255. 
Springfield  v.  Green  (120  111.  269), 

120. 
Springfield   v.    Le    Claire    (49    111. 

476),  349. 
Springfield   v.    Springfield   St.   Ry. 

Co.    (182  Mass.  41),  77,  272. 
Springfield  v.  Spence   (39  Ohio  St. 

665),  354. 
Springfield  v.  Walker   (42  Oh.  St. 

543),  45. 
Springfield   Fire  Insurance  Co.   v. 

Keeseville  (148  N.  Y.  46,  30  L.  R. 

A.  660),  318,  325,  333. 
Springfield   Safe  Deposit,   etc.   Co. 

v.  Attica  (85  Fed.  387),  246. 
Spring  Valley  Co.  v.  Spring  Valley 

(65  111.  App.  571),  323. 
Spring  Valley  Water-works  v.  San 

Francisco    (82  Cal.  286,  16  Am. 

St.  Rep.  116),  176. 
Spring     Valley     Water-works     v. 

Schottler  (110  U.  S.  347),  5. 
Stackpole  v.  Healy   (16  Mass.  33), 

68. 
Stafford   v.    Oskaloosa    (57   Iowa, 

748),  339. 
Stanke  v.  St.  Paul   (71  Minn.  51), 

347. 
Stanfield  v.  State  (83  Tex.  370,  18 

S.  W.  577) ,  290. 
Stanley   v.    Davenport    (54    Iowa, 

463,  37  Am.  Rep.  216),  315,  341, 

343. 
Stanley  Taylor  v.  Supervisors  (135 

Cal.  486),  40. 
Starr  v.  Burlington  (45  Iowa,  87), 

144. 
State  v.  Ackerman  (51  Ohio  St.  163, 

24  L.  R.  A.  298),  369. 
State  v.  Alt  (26  Mo.  App.  673),  200. 
State  v.  Ames  (31  Minn.  440),  363. 


ARE  TO   PAGES.] 

State   v.    Anderson    (44    Ohio    St. 

247),  296. 
State  v.  Anderson  (58  N.  J.  L.  515, 

33  Atl.  846),  179. 
State  v.  Anderson  (45  Ohio  St.  196, 

12  N.  E.  656),  177. 
State  v.  Anwerda   (40  Iowa,  151), 

55. 

State  v.  Atlantic  City  (49  N.  J.  L. 
558),  249. 
State  v.  Atlantic  City  (52  N.  J.  L. 

332,  8  L.  R.  A.  697),  366. 
State  v.  Austin   (114  N.  C.  855,  41 

Am.  St.  817),  148. 
State  v.  Ballin   (144  U.  S.  1),  222. 
State  v.  Barker   (116  la.  96),  259, 

2GO,  264. 
State  v.  Baltimore  and  O.  R.  Co. 

(25  Md.  279),  272. 
State  v.  Barrows   (71  Minn.  178), 

180. 
State  v.  Bayonne  (35  N.  J.  L.  335), 

125,  128. 
State  v.  Bayonne  (44  N.  J.  L.  114), 

90,  164. 
State  v.  Beacom  (66  Oh.  St.  491), 

294. 
State  v.  Beloidere  (44  N.  J.  L.  350), 

147. 
State  v.  Benerly  (45  N.  J.  L.  289), 

181. 
State  v.  Bennett  (29  Mich.  451,  18 

Am.  Rep.  107),  278. 
State  v.  Bergen  (33  N.  J.  L.  72,  128, 

133. 

State  v.  Berka  (20  Neb.  375) ,  291. 
State  v.  Beverly  (45  N.  J.  L.  288) , 

130. 
State  v.  Bill  (13  Ired.,  N.  C.,  273), 

372. 

State  v.  Binder  (38  Mo.  450),  172. 
State  v.  Blair  (76  N.  C.  78),  206. 
State  v.  Blossom  (19  Nev.  312), 

190. 
State  v.  Blue    (122  Ind.  600),  87, 

274. 
State  v.  Board   (24  Wis.  683),  41. 


Ixxxiv 


TABLE  OP   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


State  Bd.  of  Edu.  v.  Aberdeen  (56 

Miss.  518),  274. 
State  v.  Board  of  Freeholders   (52 

N.  J.  L.  512,  19  Atl.  972),  291. 
State  v.  Board  of  Pub.  Works  (27 

Minn.  442),  119. 
State  v.  Boneil  (42  La.  Ann.  1110, 

21  Am.  St.  413),  145. 
State  v.  Boucher   (3  N.  Dak.  389, 

21  L.  R.  A.  539),  178. 
State  v.  Boyd   (19  Nev.  43),  283, 

296. 
State  v.  Bridgeman  (8  Kan.  458), 

363. 
State  v.  Brinkerhoff  (66  Tex.  45), 

185. 
State  v.  Bronson    (115  Mo.  271), 

87. 

State  v.  Brown  (19  Fla.  563),  164. 
State  v.  Bruggernian  (31  Minn. 

493),  112. 

State  v.  Buhler  (90  Mo.  560),  362. 
State  v.  Bulkley  (61  Conn.  287,  14 

L.  R.  A.  657),  197,  368. 
State  v.  Buss   (135  Mo.  335,  33  L. 

R.  A.  616) ,  184,  186,  308. 
State  v.  Camden   (58  N.  J.  L.  515, 

33  Atl.  846),  134. 
State  v.   Cantiney    (34  Minn.   1), 

130. 
State  v.  Carr  (129  Ind.  44,  13  L.  R. 

A.  127),  194. 
State  v.   Carrol    (38  Conn.  449,  9 

Am.  Rep.  409),  188,  189. 
State  v.  Cassidy  (22  Minn.  321,  21 

Am.  Rep.  765),  56,  58. 
State    Centre    v.    Barenstein    (66 

Iowa,  249),  58. 

State  v.  Chatburn  (63  la.  659) ,  200. 
State  v.  Choate  (11  Ohio,  511),  204. 
State  v.  Churchill  (15  Minn.  455, 

Gil.  369),  367. 

State  v.  Cincinnati    (20  Ohio   St 

18),  302. 
State  v.   Cincinnati    (52  Ohio   St. 

419,  27  L.  R.  A.  737),  26. 


State  v.  Cincinnati,  etc.  Gas.  Co. 

(18  Ohio  St  262),  83,  92,  95,  174, 

369. 
State  v.  City  of  Hudson  (29  N.  J. 

L.  475),  133. 
State  v.  City  of  Orange   (50  N.  J. 

L.  389) ,  158. 
State  v.  City  of  Trenton  (53  N.  J. 

L.  132,  20  Atl.  1076),  153. 
State  v.  Clark   (54  Mo.  17),  150. 
State  v.  Clark   (3  Nev.  566),  182, 

198. 

State  v.  Clark  (23  Minn.  422),  236. 
State  v.  Clark  (52  Mo.  508),  193. 
State  v.  Clark  (28  N.  H.  176),  159. 
State  v.  Clayton   (27  Kan.  442,  41 

Am.  Rep.  482),  198. 
State  v.  Clinton  Co.    (6  Ohio  St 

280),  238. 
State  v.  Comm.  (50  N.  J.  L.  457,  14 

Atl.  587),  369. 
State  v.  Considine  (16  Wash.  358, 

47  Pac.  75),  160. 

State  v.  Cook  (43  Neb.  318),  221. 
State  v.  Cooley  (83  111.  585),  47. 
State   v.    Cooley    (56   Minn.   540), 

282,  291. 
State  v.  Copeland  (96  Tenn.  296,  31 

L.  R.  A.  844),  205,  207. 
State   v.    County   Court    (50    Mo. 

317,  299. 
State  v.  County  Court  (51  Mo.  83) , 

299. 
State   v.   Covington    (29   Ohio   St. 

102),  265,  282,  287,  288. 
State  v.  Craig  (132  Ind.  54,  16  L, 

R.  A.  688),  264. 
State  v.  Croft  (24  Ark.  560),  206. 

State  v.  Dallas  Co.  (72  Mo.  329), 
231. 

State  v.  Daviess  Co.   (64  Mo.  30), 
233. 

State  v.  Deffes   (44  La.  Ann.  658, 
12  So.  841),  166. 

State  v.  De  Gress   (53  Tex.  387), 
204. 


TABLE  OF   CASES   CITED. 


Ixxxv 


[REFERENCES  ARE  TO  PAGES.] 


State  v.  Delaney   (N.  J.,  1893,  25 

Atl.  946),  180. 
State  v.  Bering    (84  Wis.  585,  19 

L.  R.  A.  858,  36  Am.  Rep.  948), 

147,  156,  157,  165,  166. 
State  v.  Dickson  County  Com'rs  (24 

Neb.  106),  42. 
State  v.  Dickson  Co.  Sch.  Dist.  (31 

Neb.  552),  87. 
State  v.  Dillon  (32  Fla.  545,  22  L. 

R.  A.  124),  177,  180. 
State  v.  Dillon  (125  Ind.  65,  5  N. 

E.  136),  173. 
State  v.  District  Court  (29  Minn. 

62),  119. 
State  v.  District  Court   (33  Minn. 

235),  6. 
State  v.  District  Court   (41  Minn. 

518),  136. 
State  v.  District  Ct.  of  Ramsey  (68 

Minn.  242),  122. 
State  v.  Doherty  (16  Wash.  382,  47 

Pac.  958),  179. 
State  v.  Donaldson  (41  Minn.  74), 

49. 
State  v.  Donovan   (20  Nev.  75,  15 

Pac.  783),  293. 
State  v.  Dousman   (28  Wis.  541), 

283,  286. 

State  v.  Dow  (70  N.  H.  286),  49. 
State  v.  Draper  (45  Mo.  355),  184. 
State  v.  Dunn   (12  Am.  Dec.  25), 

204. 
State  v.  Du  Barry  (44  La.  Ann.  — , 

11  So.  718),  166. 
State  v.  Dupaquier    (46  La.  Ann. 

577,  26  L.  R.  A.  162),  53. 
State  v.  E.  Orange   (41  N.  J.  L. 

147),  152. 
State  v.  Eau  Claire  (40  Wis.  533), 

101. 
State  v.  Eidson  (76  Tex.  302,  7  L. 

R.  A.  733),  278,  279. 
State   v.   Elizabeth    (37   N.   J.   L. 

432),  128. 
State  v.  Elizabeth  (56  N.  J.  L.  71, 

23  L.  R.  A.  525),  292. 


State  v.  Ellet   (47  Ohio  St.  90,  23 

N.  E.  931),  287,  288,  296. 
State  v.  Errnentrout  (63  Minn.  105, 

65  N.  W.  251),  179. 
State  v.  Essex  County  (23  N.  J.  L. 

214),  363. 

State  v.  Eberly  (12  Nev.  616),  373. 
State  v.  Fagin  (42  Conn.  32),  197. 
State  v.  Ferguson  (31  N.  J.  L.  170), 

198. 
State  v.  Ferris  (53  Ohio  St.  314), 

282,  287. 

State  v.  Finn  (87  Mo.  310),  307. 
State  v.  Fond  du  Lac,  etc.  (24  Wis. 

683),  41. 

State  v.  Forest  (74  Wis.  610),  277. 
State  v.  Forkner  (94  Iowa,  733,  28 

L.  R.  A.  206),  290. 
State  v.  Fountain  (14  Wash.  236), 

131. 
State  v.  Fourcade  (45  La.  Ann.  717, 

40  Am.  St.  249),  153. 
State  v.  Freeman  (38  N.  H.  426), 

161. 
State  v.  French  (17  Mont.  54,  39  L. 

R.  A.  415),  58,  158. 
State  v.  Friedley  (135  Ind.  119,  21 

L.  R.  A.  634) ,  193. 
State  v.  Gardner  (34  N.  J.  L.  327), 

120. 

State  v.  Gates  (35  Minn.  385),  177. 
State  v.  George  (23  Fla.  585),  179. 
State  v.  Glenn  (54  Md.  571),  65. 
State  v.  Goff  (15  R.  I.  207,  2  Am. 

St.  921),  186. 
State  v.  Goodville  (30  W.  Va.  179, 

6  L.  R.  A.  621),  180. 
State  v.   Gorton    (33  Minn.  345), 

179. 
State  v.  Govan  (70  Miss.  535, 12  So. 

959),  25. 

State  v.  Graham  (16  Neb.  74),  293. 
State  v.  Green  (37  Ohio  St.  227), 

173. 

State  v.  Green  (41  la.  693) ,  67. 
State  v.  Haben  (22  Wis.  629),  260, 

268. 


Ixxxvi 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


State  v.  Hammer  (42  N.  J.  L.  435, 

440),  291,  294,  296. 
State  v.  Hannibal,  etc.  Ry.  Co.  (75 

Mo.  208),  114. 
State  v.  Hurdy   (7  Neb.  377),  140, 

143. 
State  v.  Harper   (6  Ohio  St.  607, 

67  Am.  Dec.  363),  206. 
State  v.  Harrington  (68  Vt  622,  34 

L  R.  A.  100),  158. 
State  v.  Harris  (102  Minn.  340,  113 

N.  W.  887),  23. 
State  v.  Harris   (50  Minn.  128,  52 

N.  W.  387),  65,  132,  145. 
State  v.  Harris  (96  Mo.  29,  22  Am. 

&  Eng.  Corp.  Cas.  43) ,  235. 
State  v.  Harrison    (113  Ind.  434), 

197. 
State  v.  Harshaw    (73  Wis.  211), 

279. 
State  v.  Hart   (33  L.  R.  A.  118), 

134. 
StPte  v.  Hawkins  (44  Ohio  St.  98), 

U9. 
State  v.  Haworth    (122  Ind.  462), 

87,  274. 
State   v.   Helena    (24   Mont.   521), 

249,  253. 
State  v.  Hellmon   (56  Conn.  190), 

159. 
State  v.  Henderson    (38  Ohio  St. 

644),  135. 
State  v.   Hermann    (75   Mo.   340), 

296. 

State  v.  Hill   (32  Minn.  275),  365. 
State  v.  Hitchcock    (1  Kan.  178), 

299. 
State  v.  Hordey   (39  Kan.  657,  18 

Pac.  942),  234. 
State  v.  Houston   (78  Ala.  576,  56 

Am.  Rep.  59),  207. 
State  v.  Hoyt  (2  Oreg.  246),  186. 
State  v.  Hughes  (72  N.  C.  25),  156. 
State  v.   Hughes  County    (1  S.  D. 

292,  10  L.  R.  A.  588),  371. 
State  v.  Hunter  (38  Kan.  578),  264, 

265,  290. 


State  v.  Hutt  (2  Ark.  282),  185. 
State  v.  Huyvenhan   (42  La.  Ann. 

483,  7  So.  621),  161. 
State  v.  Ironton  Gas  Co.  (37  Ohio 

St.  45) ,  5. ' 
State  v.   Itzkovitch    (49  La.   Ann. 

366,  21  So.  544),  56. 
State  v.  Jackman  (69  N.  H.  318), 

78. 
State  v.  Jacksonville  S.  R.  Co.  (29 

Fla.  590),  262. 
State   v.    Janesville,   etc.    Ry.   Co. 

(87  Wis.  72,  41  Am.  St.  23),  154. 
State  v.  Jersey  City    (25  N.  J.  L. 

536),  199,  203,  366. 
State  v.  Jersey  City   (27  N.  J.  L. 

493),  127,  128. 
State  v.  Jersey  City   (29  N.  J.  L. 

441),  123. 
State  v.  Jersey  City   (34  N.  J.  L. 

429),  133. 
State  v.  Jersey  City   (37  N.  J.  L. 

128),  121. 
State  v.  Johnson   (30  Fla.  433,  18 

L.  R.  A.  414),  203. 
State  v.  Johnson   (35  Fla.  2,  35  L. 

R.  A.  357),  367. 
State  v.   Jones    (66  Oh.   St   453), 

294. 

State  v.  Jones  (109  U.  S.  513),  106. 
State  v.  Judge  (38  La.  Ann.  43,  58 

Am.  Rep.  158),  177. 
State  v.  Judges   (21  Ohio  St  1), 

287. 
State  v.  Judge,  etc.   (42  La.  Ann. 

1089,  10  L.  R.  A.  248),  371. 
State  v.  Kantler  (33  Minn.  69),  164. 
State  v.  Kemp  (69  Wis.  470,  2  Am. 

St.  753),  177. 
State  v.  Kiichli   (53  Minn.  147,  54 

N.   W.   1069,   19   L.   R.   A.  779), 

171,  177,  178,  200. 
State  v.  Kirk    (44  Ind.  401),  186. 
State  v.  Kirkwood  (14  Iowa,  162), 

363. 
State  v.  Kolsen  (130  Ind.  434),  257, 

265,  269,  299. 


TABLE  OF   CASES   CITED. 


Ixxxvii 


[REFERENCES  ARE  TO  PAGES.] 


State  v.  Labatate  (39  La.  Ann.  513, 

2  So.  550),  149. 
State  v.  Laclede  Gas  Co.  (102  Mo. 

472),  22  Am.  St.  789),  92. 
State  v.  Langlie   (5  N.  D.  594,  32 

L.  R.  A.  723),  363,  367. 
State  v.  Lake  City  (25  Minn.  404), 

277. 
State  v.  Lanier  (31  La.  Ann.  423), 

206. 

State  v.  Larson  (50  Minn.  63),  132. 
State  v.  Laverack  (34  N.  J.  L.  201), 

73. 

State  v.  Leach  (60  Me.  58),  203. 
State  v.  Leatherman  (38  Ark.  81), 

23. 

State  v.  Leavey  (22  Nev.  454),  30. 
State  v.  Leovy  (21  La.  Ann.  538), 

266. 
State  v.  Lee    (29  Minn.  445),  65, 

145. 
State  v.  Leffingwell   (54  Mo.  458), 

7. 

State  v.  Lincoln  (4  Neb.  260),  198. 
State  v.  Lincoln  Co.  (35  Neb.  346), 

42. 
State  v.  Long  Branch  (42  N.  J.  L. 

364,  36  Am.  Rep.  518) ,  160. 
State  v.  Lusk  (48  Mo.  242),  186. 
State  v.  McCabe   (74  Wis.  481,  43 

N.  W.  322),  363. 
State  v.   McGarry    (21  Wis.  496), 

33,  202. 
State  v.  McGrath  (91  Mo.  386),  40, 

41. 
State  v.  McMahon  (69  Minn.  265), 

56,  57,  78.  10(5. 
State  v.  McNally  (48  La.  Ann.  1450, 

21  So.  27,  36  L.  R.  A.  533),  158. 
State  v.  McQuade   (12  Wash.  554, 

14  Pac.  897),  202. 
State  v.  McReynolds  (61  Mo.  203). 

368. 
State  v.  Macklin    (13  S.  W.  680), 

295. 
State  v.  Manner  (43  La.  Ann.  496, 

9  So.  840),  167. 


State  v.  Main  (37  Atl.  80),  53. 
State  v.  Manitowoc  (52  Wis.  421), 

363,  364. 
State  v.  Marlow  (15  Ohio  St.  114) , 

177. 
State   v.   Marion   Co.   Com'rs    (39 

Ohio  St.  188),  41. 
State  v.  Mayor,  etc.   (37  N.  J.  L. 

348),  155. 
State  v.  Mayor   (54  N.  J.  L.  Ill), 

140. 
State  v.  Mayor  of  Atlantic  City  (52 

N.  J.  L.  332,  8  L.  R.  A.  967),  190. 
State  v.  Mayor  of  Newark  (53  N. 

J.  L.  4,  20  Atl.  86),  298. 
State  v.  Mayor,  etc.   (103  la.  76), 

259. 
State  v.  Mayor  (5  Port,  Ala.,  279), 

59,  73. 
State  v.  Medbery  (7  Ohio  St.  523), 

253. 

State  v.  Merrill   (37  Me.  329),  35. 
State  v.  Messenger  (27  Minn.  119), 

108,  112. 

State  v.  Miller  (100  Mo.  439) ,  295. 
State  v.  Milner  (66  Minn.  90,  68  N. 

W.  732),  180. 
State  v.  Milwaukee  (20  Wis.  87),  6, 

98. 
State  v.  Mitchell  (31  Ohio  St.  592), 

296. 
State   v.   Mitchel    (50   Kan.   289), 

200,  202. 
State  v.  Montgomery  (74  Ala.  226), 

233. 

State  v.  Moore  (45  Neb.  12),  233. 
State  v.  Moore  (74  Mo.  413,  41  Am. 

Rep.  322) ,  206. 

State  v.  Moores  (52  Neb.  770),  182. 
State  v.  Morristown    (33  N.  J.  L. 

57),  150. 

State  v.  Morse  (50  N.  H.  9),  106. 
State  v.  Mott  (61  Md.  297),  54. 
State  v.  Municipal  Court  (32  Minn. 

329),  147. 
State   v.   Murphy    (134   Mo.   548), 

211. 


Ixxxviii 


TABLE  OF   CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


State  v.  Murray  (29  Wis.  96,  9  Am. 

Rep.  489),  181. 
State  v.  Nashville   (15  Lea,  Term., 

097),  147,  196. 

State  v.  Neely  (30  S.  C.  587) ,  236. 
State  v.  Nelson  (34  L.  R.  A.  318), 

74. 
State  v.   Nelson    (41   Minn.   25,   4 

L.  R.  A.  300),  218,  368. 
State  v.  Nelson  (66  Minn.  166),  36, 

157. 
State  v.  Nelson  Co.  (45  N.  W.  Rep. 

33,  8  L.  R.  A.  283),  232. 
State  v.  Nevins  (19  Nev.  162),  206. 
State  v.  Newark  (25  N.  J.  L.  399), 

126,  136,  372. 
State  v.  Newark  (27  N.  J.  L.  185), 

122. 
State  v.  Newark  (30  N.  J.  L.  303), 

134. 
State  v.  New  Brunswick  (58  N.  J. 

L.  255),  127. 
State  v.  New  Orleans  (37  La.  Ann. 

13),  271. 
State  v.  New  Orleans   (109  U.  S. 

285),  322. 
State  v.  Northumberland  (46  N.  H. 

156),  349. 
State   v.   Norton    (63   Minn.   497), 

120. 

State  v.  Noyes  (30  N.  H.  279),  25. 
State  v.  Oats  (86  Wis.  634,  39  Am. 

St.  912),  204. 
State   v.   Ocean   Grove,   etc.   Ass'n 

(55  N.  J.  L.  507,  26  Atl.  798), 

158. 

State  v.  Ocean  Grove  Camp  Meet- 
ing Ass'n  (59  N.  J.  L.  110,  35  Atl. 

794),  132. 
State  v.  O'Connor  (54  N.  J.  L.  36, 

22  Atl.  1091),  298. 
State  v.  Ollinger  (Iowa,  1897,  72  N. 

W.  441),  191. 
State  v.  Omaha  and  C.  R.  R.  and  B. 

Co.  (113  Iowa,  30),  137. 
State  v.  Orange   (50  N.  J.  L.  389, 

13  Atl.  240),  152. 


State  v.  Orr  (68  Conn.  101,  28  L. 

R.  A.  279),  49. 
State  v.  Osawkee  Tp.  (14  Kan.  418, 

19  Am.  Rep.  99),  232. 
State   v.   Parker    (25   Minn.   215), 

368. 
State  v.  Parsons   (40  N.  J.  L.  1), 

282,  283. 

State  v.  Paterson  (34  N.  J.  L.  163), 

90. 
State  v.  Patterson  (98  N.  C.  660), 

131. 
State  v.  Patterson  (40  N.  J.  L.  186), 

195. 
State  v.  Peterson   (50  Minn.  239), 

199. 
State  v.  Pinkerman  (63  Conn.  176, 

22  L.  R.  A.  563),  190,  193,  196. 
State  v.  Pond  (93  Mo.  606,  6  S.  W. 

469),  289,  290. 

State  v.  Porter  (113  Ind.  79),  223. 
State  v.  Powell  (97  N.  C.  417),  65. 
State  v.  Powers  (38  Ohio  St.  54), 

288. 
State  v.  Powle  (67  Mo.  395,  29  Am. 

Rep.  512),  206. 
State  v.  Priester    (43  Minn.  373), 

143. 

State  v.  Prince  (45  Wis.  610),  203. 
State  v.  Pritchard  (36  N.  J.  L. 

101),  199. 

State  v.  Pugh  (43  Ohio  St.  98),  296. 
State  v.  Rahway  (33  N.  J.  L.  Ill) , 

366. 
State  v.  Rahway  (58  N.  J.  L.  578), 

132. 

State  v.  Reed  (38  N.  H.  59),  107. 
State  v.  Reis  (38  Minn.  371),  115, 

117,  120. 

State  v.  Rhoades  (6  Nev.  352),  187. 
State  v.  Riordan  (24  Wis.  484), 

283,  285. 

State  v.  Roberts  (74  Mo.  21),  87. 
State  v.  Robinson  (35  Neb.  401,  17 

L.  R.  A.  383),  366. 
State  v.  Robitshek  (60  Minn.  123), 

65,  145. 


TABLE  OP   CASES   CITED. 


Ixxxix 


[REFERENCES  ARE  TO  PAGES. 


State  v.  Rogers  (10  Nev.  250) ,  131. 
State  v.  Rose  (4  N.  D.  319,  26  L. 

R.  A.  593),  372. 
State  v.  Ruff  (4  Wash.  234,  16  L. 

R.  A.  140) ,  181. 
State  v.   Saline  Co.    (48  Mo.  390, 

8  Am.  Rep.  108),  234. 
State  v.  Saline  Co.  (51  Mo.  350,  11 

Am.  Rep.  454),  370. 
State  v.  Schar   (50  Mo.  393),  307. 
State  v.  Seavey  (22  Nev.  454),  265. 
State  v.    Secrest    (13   Minn.   381), 

365. 

State  v.  Segel  (60  Minn.  507),  160. 
State  v.  Sexton  (42  Minn.  154) ,  65. 
State  v.  Shannon  (132  Mo.  139), 

181. 

State  v.  Shea  (106  la.  735),  195. 
State  v.  Shearer  (46  Ohio  St.  275), 

288. 
State  v.   Sheppard    (64  Minn.  287, 

36  L.  R.  A.  305),  152,  154,  155. 
State  v.  Sherwood   (15  Minn.  221, 

2  Am.  Rep.  116),  367. 
SJate  v.  Simon  (53  N.  J.  L.  550,  22 

All.  120),  293. 
State  v.  Sloan   (48  S.  C.  21,  25  S. 

E.  598),  78. 
State  v.  Smith  (48  Oh.  St.  211,  26 

N.  E.  1069),  296. 

State  v.  Smith  (87  Mo.  158),  197. 
State  v.  Smith  (35  Neb.  13),  202. 
State  v.  Smith  (44  Ohio  St.  348), 

267. 

State  v.  Smith  (22  Minn.  218),  367. 
State  v.  Smith  (14  Wis.  497),  179, 

181. 
State  v.   Somerby    (42  Minn.   55), 

369. 
State  v.  Somers'  Point  (52  N.  J.  L. 

33,  6  L.  R.  A.  57),  292. 
State  v.  Sone  (16  R.  I.  620),  204. 
State  v.  South  Kingston   (18  R.  I. 

258,  22  L.  R.  A.  65),  366. 
State  v.    Southern   Minn.   Ry.   Co. 

(18  Minn.  40,  Gil.  21) ,  362. 


State  v.  Spande  (37  Minn.  322,  34 

N.  W.  164),  282,  291. 
State  v.  Spaulding  (102  Iowa,  639), 

177. 
State  v.   Squires    (26  Iowa,  340), 

300. 

State  v.  Stark  (IS  Fla.  255),  284. 
State  v.  Stewart  (74  Wis.  630),  104. 
State  v.  'Stone  (120  Mo.  428,  23  L. 

R.  A.  194),  363. 
State  v.  Stout  (58  N.  J.  L.  598,  33 

Atl.  858),  29. 

State  v.  Strauss  (49  Md.  288),  160. 
State  v.  St.  Joseph    (37  Mo.  270), 

235. 
State  v.  St.  Louis  Co.  Ct.  (34  Mo. 

546),  260. 

State  v.  St.  Louis  (90  Mo.  19) ,  202. 
State  v.  St.  Paul    (32  Minn.  329), 

59. 
State  v.  St.  Paul   (34  Minn.  250), 

371. 
State  v.  St.  Paul,  etc.  R.  Co.   (35 

Minn.  131,  59  Am.  Rep.  313),  338. 
State  v.  Sullivan  (45  Minn.  309,  11 

L.  R.  A.  272),  368. 
State  v.  Supervisors  (25  Wis.  339), 

283,  285. 
State  v.  Swearingen   (12  Ga.  23), 

179. 
State  v.   Synott    (89  Me.  41),  64. 

182. 
State  v.  Taft   (118  N.  C.  1190,  23 

S.  E.  970,  32  L.  R.  A.  122),  51, 

52,  54,  160. 
State  v.   Tappan    (29  Wis.   664,  9 

Am.   Rep.   C22),  276. 
State    v.    Tappan    (29    Wis.    669), 

274. 
State    v.    Tippecanoe    County    (45 

Ind.  501),  363. 
State  v.  Toledo   (48  Ohio  St.  112, 

11  L.  R.  A.  729),  293. 
State  v.  Tolle   (71  Mo.  645),  293, 

295. 
State  v.  Tolon   (33  N.  J.  L.  195), 

369. 


xc 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 


State  v.  Tracy   (48  Minn.  497,  51 

N.  W.  613),  22,  369. 
State  v.  Trenton  (36  N.  J.  L.  79), 

77. 
State  v.  Trenton  (35  N.  J.  L.  485), 

181. 
State  v.  Trenton  (42  N.  J.  L.  486) , 

291. 
State  v.  Trenton  (49  N.  J.  L.  339), 

40,  42. 
State  v.  Trenton  (50  N.  J.  L.  338) , 

202. 
State  v.  Trenton   (53  N.  J.  L.  132, 

20  Atl.  1076),  78,  152.  156. 
State  v.  Trenton  (54  N.  J.  L.  444, 

24  Atl.  478),  296,  298. 
State  v.  Trenton  (38  N.  J.  L.  64), 

33. 

State  v.  Tryon  (39  Conn.  183),  144. 
State  v.  Tucker  (46  Ind.  355),  299. 
State  v.  Wadham  (64  Minn.  318,  67 

N.  W.  64),  179. 
State  v.  Wagner   (34  Neb.  116,  15 

L.  R.  A.  740),  366. 
State  v.  Waleen  (17  Colo.  170) ,  207. 
State  v.  Warner  (4  Wash.  263,  17 

L.  R.  A.  263),  257,  277. 
State  v.  Washington   (44  N.  J.  L. 

605),  133,  159. 
State  v.  Weatherby    (45  Mo.  17), 

368. 
State  v.  Webber  (107  N.  C.  962,  22 

Am.  St.  920),  51,  143,  145. 
State  v.  Webber   (108  Ind.  31,  58 

Am.  Rep.  30),  87. 
State  v.  Weir  (33  Iowa,  134, 11  Am. 

Rep.  115),  290. 

State  v.  Welch  (36  Conn.  215),  159. 
State  v.  Wells  (46  Iowa,  662),  64. 
State  v.  West  (42  Minn.  147) ,  145. 
State  v.  Wheelock  (95  Iowa,  577, 

30  L.  R.  A.  429),  58,  158. 
State  v.  White  (64  N.  Y.  48),  156. 
State  v.  Whitesides   (30  S.  C.  579, 

3  L.  R.  A.  777),  362,  363,  368. 
State  v.  Williams  (27  Vt.  755),  23. 


State  v.  Williams  (99  Mo.  291,  12 

S.  W.  905),  182. 
State  v.  Williams   (25  Minn.  340), 

367. 
State  v.  Williams   (68  Conn.  131), 

259. 
State   v.   Wilson    (12  Lea,   Tenn., 

246),  26,  282. 

State  v.  Wilson  (42  Me.  9),  67. 
State  v.  Withrow  (108  Mo.  1),  370. 
State  v.  Womack  (4  Wash.  19),  87. 
State  v.  Wood   (49  N.  J.  L.  85,  7 

Atl.  286),  293. 
State  v.  Woodbury   (17  Nev.  337), 

293. 
State  v.   Woodward    (23  Vt.  92), 

96. 

State  v.  Wordin  (56  Conn.  216),  53. 
State  v.  Worth  (95  N.  C.  615),  131. 
State  v.  Wright  (80  Wis.  648),  64. 
State  v.  Wright  (54  N.  J.  L.  130, 

23  Atl.  117),  294. 
State  v.  Wrightson  (56  N.  J.  L.  126, 

22  L.  R.  A.  538),  366. 
State  v.  Van  Aucken  (98  Iowa,  674, 

68  N.  W.  454),  195. 
State  v.  Van  Beek   (87  Iowa,  569, 

19  L.  R.  A.  622),  181. 
State  v.  Village  of  Lambertson  (37 

Minn.  362),  372. 
State  v.  Young  (30  Kan.  445),  20, 

63. 
State  v.  York  Co.  Com'rs  (13  Neb. 

57),  42. 
State  v.  Zigler   (32  N.  J.  L.  262), 

131. 
State  Bank  v.  Gibbs  (3  McCord,  S. 

C.,  377),  4. 
State  Board  of  Agri.  v.  Citizens'  St. 

Ry.  Co.  (47  Ind.  407,  17  Am.  Rep. 

702),  211. 
State   Center    v.    Bartenstein    (66 

Iowa,  249),  57,  158. 
State  Lunatic  Hospt.  v.  Worcester 

Co.    (1  Met.  437),  80. 
State  Railway  Tax  Cases  (92  U.  S. 

575),  371. 


TABLE  OP   CASES   CITED. 


xei 


[REFERENCES  ARE  TO  PAGES.] 


State  Reservation,  Matter  of   (132 

N.  Y.  734),  112. 
Stearnes  v.  Barre  (73  Vt.  281),  104, 

105. 
Stearns  Co.  v.  St.  Cloud,  etc.   (36 

Minn.  425),  55. 
Stebbins   v.   Keene   Township    (55 

Mich.  552),  345. 
Stebbins  v.  Mayor    (38  Kan.  573, 

16  Pac.  745),  130. 
Steckert  v.  E.  Saginaw    (22  Mich. 

104),  176,  183. 
Steele  v.  Boston   (126  Mass.  583), 

343. 
Steele  v.  Dunham    (76  Wis.  393), 

305. 
Steines  v.  Franklin  Co.  (48  Mo.  167, 

8  Am.  Rep.  87),  238. 
Stephen,  Ex  parte  (114  Cal.  278), 

143. 
Stephens  v.   Props,   of  Canal    (12 

Mass.  466),  105. 
Stephan  v.  Daniels    (27  Ohio   St. 

527),  218. 
Stetson  v.  Kempton  (13  Mass.  272), 

81. 
Sterling's  Appeal  (111  Pa.  St.  35) , 

106. 
Sterling  v.  Merrill    (124  111.  522), 

349. 
Steubenville  v.  Gulp   (38  Ohio  St. 

18,  43  Am.  Rep.  417),  193. 
Stevens  v.  Anderson  (45  Ind.  304), 

297. 
Stevens  v.   Carter    (27  Oreg.  553, 

35  L.  R.  A.  343),  367. 
Stevens   v.   Muskegon    (111   Mich. 

72),  320. 
Stevenson  v.   Bay  City    (26  Mich. 

44),  135. 
Stewart  v.  New  Orleans  (9  La.  Ann. 

461,  61  Am.  Dec.  219),  323. 

Stewart  v.  Polk  Co.   (30  Iowa,  9), 
231. 

Stickney  v.  Salem   (3  Allen,  374), 
340. 


Stilling   v.   Thorp    (54   Wis.   528), 

337. 
Still  water  v.  Moor  (Okla.,  33  Pac. 

1024),  137. 
Stinson   v.   Smith    (8   Minn.   366), 

115. 
Stock  v.  Boston   (149  Mass.  410), 

332. 
Stockbridge  v.  W.  Stockbridge  (12 

Mass.  400),  23. 

Stockdale  v.  Wayland  School  Dis- 
trict (47  Mich.  226),  245. 
Stockton  v.  Powell    (29  Fla.  1,  15 

L.  R.  A.  42) ,  180,  225. 
Stockton,  etc.  Ry.  Co.  v.  Stockton 

(51  Cal.  328),  236. 
Stoddard  v.  Saratoga  Springs  (127 

N.  Y.  261),  314,  358. 
Stone  v.   Charlestown    (114  Mass. 

214),  280. 

Stone  v.  Mobile  (57  Ala.  61),  371. 
Story  v.  N.  Y.  Elev.  R.  Co.  (90  N. 

Y.  122),  72,  74,  75. 
Stoutenburgh  v.  Hennick    (129  U. 

S.  141),  20. 
Stow  v.  Wyse  (7  Conn.  214,  18  Am. 

Dec.  99),  170. 
Stowers  v.  Postal  Tel.  &  C.  Co.  (68 

Miss.  559,  12  L.  R.  A.  864),  107. 
Strachan  v.  Brown  (39  Mich.  168) , 

107. 
Street  Ry.  Co.  v.  Doyle  (88  Tenn. 

747),  74. 
Strauss  v.  Galesburg  (203  111.  234) , 

37. 
Striker  v.  Kelley  (7  Hill,  N.  Y.,  9, 

2  Denio,  323),  138. 
Strosser   v.   Ft.   Wayne    (100   Ind. 

443),  277. 

Strout  v.  Proctor  (71  Me.  288),  201. 
Strout  v.  Pennell  (74  Me.  262),  207. 
Struthers  v.  Dunkirk,  etc.  Ry.  Co. 

87  Pa.  St.  282),  74,  104. 
Stuart  v.  School  District  (30  Mich. 

69),  22. 
Stuart  v.  Palmer   (74  N.  Y.  183), 

116. 


XC11 


TABLE  OP   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Stubbs  v.  Lee  (64  Me.  195,  18  Am. 

Rep.  251),  185. 
Stuher  v.  Kern  (44  N.  J.  L.  181,  43 

Am.  Rep.  353),  194. 
Stuhr    v.    Hoboken    (47    N.    J.    L. 

147),  137. 
Sturtevant  v.  Liberty  (46  Me.  457), 

221. 
St  Joe,  etc.  Ry.  Co.  v.  Buchanan 

Co.    (39  Mo.  485),  231. 
St.  John  v.  Mayor  (3  Bosw.,  N.  Y., 

483),  59. 
St.  Johnsbury  v.  Thompson  (59  Vt. 

300),  150. 
St.  Joseph  Tp.  v.  Rogers  (16  Wall. 

644),  235,  241. 
St.   Louis  v.  Allen    (13  Mo.  400), 

257. 

St.  Louis  v.  Allen  (53  Mo.  44),  124. 
St.  Louis  v.  Bell  Tel.  Co.   (96  Mo. 

623,  10  S.  W.  197,  2  L.  R.  A.  278, 

9  Am.  St.  Rep.  370),  30.  32. 
St.  Louis  v.  Buffinger  (19  Mo.  13), 

144. 
St.  Louis  v.  Clement  (43  Mo.  395), 

91. 
St.  Louis  v.  Fitz  (53  Mo.  582),  51, 

151. 
St.  Louis  v.  Foster   (52  Mo.  513), 

131,  138,  144. 
St.  Louis  v.  Green    (70  Mo.  562), 

154. 
St.    Louis   v.    Knox    (6    Mo.    App. 

247),  158. 
St.  Louis  v.  Laughlin  (49  Mo.  559), 

33. 
St.  Louis  v.  Russell   (9  Mo.  508), 

257. 
St.  Louis  v.  Russell   (116  Mo.  248, 

20  L.  R.  A.  721),  89,  165. 
St.  Louis  v.  Shields  (52  Mo.  351), 

270. 
St.  Louis  v.  Shields  (62  Mo.  247), 

281,  299. 
St.  Louis  v.  St.  Louis  R.  Co.   (89 

Mo.  44),  143,  156. 


St.  Louis  v.  Webber  (44  Mo.  547), 

49,  151,  152,  153,  159. 
St.  Louis,  etc.  Co.  v.  Gill  (54  Ark. 

101),  133. 
St.  Louis  Co.  v.  Griswold  (58  Mo. 

175),  266. 
St.  Louis  Co.  Ct.  v.  Sparks  (10  Mo. 

117,  45  Am.  Dec.  355),  204. 
St.  Paul  v.  Byrnes  (38  Minn.  176), 

52. 
St.  Paul  v.  Colter  (12  Minn.  41,  90 

Am.  Dec.  278),  140,  158. 
St.  Paul  v.  Gilflllan  (36  Minn.  298), 

54,  55. 
St.  Paul  v.  Smith   (27  Minn.  364), 

154. 
St  Paul  v.  Traeger  (25  Minn.  248), 

58. 
St.  Paul  G.  L.  Co.  v.  Sandstone  (73 

Minn.  225),  243. 
St.  Paul,  etc.  Co.  v.  Minneapolis  (35 

Minn.  341),  102. 
St.  Paul  Ry.  Co.,  In  re  (34  Minn. 

227),  103. 
St.    Vincent's    Orphan    Asylum    v. 

Troy  (76  N.  Y.  108,  32  Am.  Rep. 

286),  98. 
Suchaneck  v.  State  (45  Minn.  26), 

64. 
Suffield   v.    Hathaway    (44    Conn. 

521),  53. 
Suffolk  v.  Parker   (79  Va.  660,  52 

Am.  Rep.  640),  330. 
Suffolk  Sav.  Bank  v.  Boston   (149 

Mass.  364,  4  L.  R.  A.  516),  240. 
Sullivan  v.  Gilroy  (55  Hun,  N.  Y., 

285),  180. 
Sullivan  v.  Helena   (10  Mont.  134, 

25  Pac.  94),  336. 
Summers  v.  Davis  County  (103  Ind. 

263),  328, 
Summerfield  v.   Chicago    (197  111. 

270),  74. 
Suinmerville  v.  Pressley  (33  S.  C. 

56,  8  L.  R.  A.  854),  50,  52. 
Supervisors  v.  People  (110  111.  511), 

259. 


TABLE  OF   CASES   CITED. 


SC11I 


[REFERENCES  ARE  TO  PAGES.] 


Supervisors  v.  Rogers  (7  Wall.,  TJ. 

S.,  175),  365. 
Supervisors  of  Marshall  County  v. 

Schenck    (5   Wall.,   U.   S.,   772), 

239. 
Sutliff  v.  Board   (147  U.  S.  230), 

346. 
Sutton's  Hospital  Case  (10  Reports, 

31o),  149. 
Swanson  v.   Ottumwa    (118  Iowa, 

161),  248. 
Svvarth  v.  People  (109  111.  621),  90, 

164. 
Sweet  v.  Carver  Co.  (16  Minn.  106) , 

224. 
Sweet  v.  Hulbert  (51  Barb.  312), 

231. 

Swan  v.  Buck  (40  Miss.  268),  191. 
Swift  v.  Falmouth  (167  Mass.  115, 

45  N.  E.  184),  209. 
Swift  v.  People  (162  111.  504),  127. 
Swift  v.  Topeka    (43  Kan.  671,  8 

L.  R.  A.  772),  153. 
Swindell  v.   State   (143  Ind.  153"), 

127,  134,  367. 
Sykes  v.  Columbus  (55  Miss.  115), 

228. 
Sylvester  Coal  Co.  v.  St.  Louis  (130 

Mo.  323,   51  Am.   St.   556),  145, 

146. 
Symouds  v.  Clay  County   (71  111. 

355) ,  329. 
Syracuse  W.  Co.  v.  Syracuse  (116 

N.  Y.  167,  5  L.  R.  A.  546),  85,  95. 

T. 

Tacoma  v.  Tacoma  L.  &  W.  Co.  (15 

Wash.  499,  46  Pac.  1119),  46. 
Tacoma  G.  &  E.  Co.  v.  Tacoma  (14 

Wash.  288,  44  Pac.  655),  83. 
Taft  v.  Pittsford  (28  Vt.  286),  224. 
Taggart  v.  Newport  St.  Ry.  Co.  (16 

R.  I.  668,  7  L.  R.  A.  205),  105. 
Tainter   v.   Worcester    (123   Mass. 

311,  24  Am.  Rep.  90),  325. 
Talbot  v.  New  York  &  Harlem  R.  R. 

Co.   (151  N.  Y.  155),  106,  110. 


Talbot  Co.  v.  Queen  Anne  Co.  (50 

Md.  245),  257. 
Talbot    Pav.    Co.    v.    Detroit    (109 

Mich.  657) ,  42. 
Tallahassee  v.  Fortune  (3  Fla.  19, 

52  Am.  Dec.  358),  336. 
Tarkio  v.  Cook  Co.  (120  Mo.  1,  41 

Am.  St.  678),  131. 
Tarney  v.  New  York  (12  Hun,  542), 

313. 
Tarnsney  v.  Bd.  of  Education  (147 

Mich.  418),  191. 
Tate  v.  Greenboro   (114  N.  C.  392, 

24  L.  R.  A.  671),  90. 
Tate  v.   St.  Paul    (56  Minn.  527), 

356,  357. 
Tatham  v.  Philadelphia  (11  Phila. 

276),  230. 
Taunton  v.  Taylor  (116  Mass.  254), 

53. 
Taylor  v.  Americus    (39  Ga.  59), 

372. 
Taylor  v.  Austin    (52  Minn.  247), 

358. 
Taylor  v.  Bay  City  R.  Co.  (SO  Mich. 

77),  30. 
Taylor  v.  Carondelet  (22  Mo.  105), 

144. 

Taylor  v.  Kolb  (100  Ala.  603),  368. 
Taylor  v.   I^ambertville    (43  N.   J. 

Eq.  107),  125. 
Taylor  v.  Newberne  (2  Jones's  Eq. 

141,  64  Am.  Dec.  566) ,  26. 
Taylor  v.  Owensboro  (98  Ky.  271), 

323. 
Taylor   v.   Palmer    (31  Cal.  240), 

124,  140. 
Taylor  v.  Phila.  Bd.  of  Health  (31 

Pa.  St.  73,  72  Am.  Dec.  724),  265. 
Taylor  v.  Sullivan    (45  Minn.  309, 

11  L.  R.  A.  272),  182,  197. 
Taylor  v.  Taylor  (10  Minn.  107,  Gil. 

81),  235. 
Taylor  v.  Woburn  (130  Mass.  494), 

338. 
Tedens  v.  Sanitary  Dist.   (149  111. 

87),  105. 


XC1V 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Templeton    v.    Linn    County     (22 

Oreg.  313,  15  L.  R.  A.  730),  336. 
Templeton  v.  Voshloe  (72  Ind.  134, 

37  Am.  Rep.  150) ,  354. 
Ten  Eyck  v.  Canal  Co.  (18  N.  J.  L. 

200),  2. 
Terre  Haute  v.  Lake  (43  Ind.  480) , 

125. 
Terrell  v.  Andrew  Co.  (44  Mo.  309), 

307. 
Terrett  v.  Taylor  (9  Cranch,  52), 

261. 
Territory   v.    Oklahoma    (2    Okla. 

158),  253. 
Territory  v.   Smith    (3  Minn.  240, 

Gil.  104),  182. 
Territory  v.  Stewart   (1  Wash.  98, 

8  L.  R.  A.  106),  29. 
Terry  v.  Milwaukee  (15  Wis.  490), 

223. 
Terry  v.  Richmond   (94  Va.  537), 

319,  320,  359. 
Texton  v.  B.  &  O.  Ry.  Co.  (59  Md. 

63,  43  Am.  Rep.  340) ,  78. 
Thayer  v.  Boston   (19  Pick.  511), 

316,  318. 
Theisen  v.  McDavid   (34  Fla.  440, 

26  L.  R.  A.  234),  148,  151. 
Theobald  v.  Louisville,  etc.  Ry.  Co. 

(66  Miss.  279,  4  L.  R.  A.  735), 

72. 
Thomas,  Re  (53  Kan.  659,  37  Pac. 

171),  131. 

Thomas  v.  Board   (5  Ind.  4),  299. 
Thomas   v.   Burlington    (69   Iowa, 

140),  218,  248,  251. 
Thomas  v.  Findley   (6  Ohio  C.  C. 

241),  327. 
Thomas  v.  Gain    (35  Mich.  155), 

120. 
Thomas  v.  Leland  (24  Wend.  65). 

273,  274,  275,  276. 
Thomas  v.  Markman  (43  Neb.  843), 

307. 
Thomas  v.  Mason  (39  W.  Va.  526, 

26  L.  R.  A.  727),  52,  364. 


Thomas  v.  Port  Huron   (27  Mich. 

320),  215,  230. 
Thomas  v.  Richmond  (12  Wall.,  U. 

S.,  349),  32,  147,  224. 
Thomas  v.  Sorrell  (Vaughan,  330), 

335. 
Thompson  v.  Allen  Co.   (115  U.  S. 

550),  98. 
Thompson  v.  Carroll  (22  How.,  U. 

S.,  422),  147. 
Thompson    v.    Couch    (144    Mich. 

671),  22. 
Thompson    v.    Jackson    (93    Iowa, 

376,  27  L.  R.  A.  92),  305. 
Thompson  v.  Lee  Co.  (3  Wall.  327) , 

32,  230. 
Thompson  v.  Moran  (44  Mich.  602), 

101. 
Thompson    v.    Pacific    R.    Co.     (9 

Wall.,  U.  S.,  579),  3. 
Thompson  v.  Schermerhorn   (6  N. 

Y.  92,  52  Am.  Dec.  385),  89. 
Thomson  v.  Boonville  (61  Mo.  282), 

90. 
Thomson-Houston   Elec.   L.   Co.   v. 

Newton  (42  Fed.  723),  85. 
Throckmorton    v.    Price    (28   Tex. 

609),  307. 
Tice  v.  Bay  City  (84  Mich.  461,  47 

N.  W.  1062),  346. 
Tiedt  v.  Carstensen  (61  Iowa,  334), 

112. 

Tie  Lay,  In  re  (26  Fed.  611),  148. 
Tierney  v.  Dodge  (9  Minn.  156),  65. 
Tiger  v.  Morris  (42  N.  J.  L.  631), 

298,  302. 
Tillinghast  v.   Merrill    (151  N.  Y. 

135,  34  L.  R.  A.  678),  205. 
Tillman  v.  People  (12  Mich.  401), 

67,  68. 
Tillmon  v.  Otter  (93  Ky.  600,  29  L. 

R.  A.  110),  171. 
Times  Pub.  Co.  v.  Everett  (9  Wash. 

518),  41. 
Tindley  v.  Salem  (137  Mass.  171), 

311,  316. 


TABLE  OF   CASES   CITED. 


XCV 


[REFERENCES  ARE  TO  PAGES.] 


Tipton   v.   Norman    (72   Mo.   380), 

127. 
Tipton  v.  Kimberlin  (108  Ind.  449) , 

361. 
Tisdale  v.  Town  of  Minonk  (46  111. 

9),  139. 
Tissot  v.  Great  So.  Tel.  Co.  (39  La. 

Ann.  996,  4  Am.  St.  248),  54. 
Titlf   G.  &  T.  Co.  v.  Chicago   (162 

111.  505),  116,  120. 
Todd  v.  Dunlap  (99  Ky.  449),  203. 
Toledo  v.  Cone  (41  Ohio  St.  149), 

331. 
Toledo,  etc.  Ry.  Co.  v.  Jacksonville 

(67   111.   37,   16   Am.   Rep.   611), 

156. 
Tomlin  v.  Dubuque,  etc.  Ry.  Co.  (32 

Iowa,  106,  7  Am.  Rep.  126),  105. 
Tomlinson   v.   Board   of   Equaliza- 
tion, (88  Tenn.  1,  6  L.  R.  A.  207), 

371. 
Tomlinson  v.  Indianapolis  (144  Ind. 

142,  36  L.  R.  A.  413),  56,  58. 
Topeka   v.  Bout  well    (53  Kan.  20, 

27  L.  R.  A.  593),  161. 
Topeka  v.  Gillett    (32  Kan.  431), 

297. 
Topeka  v.  Huntoon  (46  Kan.  634), 

176,  183. 
Topeka    v.    Tuttle    (5   Kan.   186), 

336. 
Topeka  Board,  etc.  v.  Welch    (51 

Kan.  797),  87. 
Topping  v.  Windley   (99  N.  C.  4), 

309. 
Torbush  v.  Norwich  (38  Conn.  225, 

9  Am.  Rep.  395),  327. 
Torrent    v.    Muskegon    (47    Mich. 

115),  34,  82. 
Torrey  v.  Millbury    (21  Pick.  64), 

217. 
Toutloff   v.   Green   Bay    (91   Wis. 

490),  345. 
Town  of  Coloma  v.  Eaves   (92  U. 

S.  484),  227. 
Town  of  Kosciusko  v.  Stomberg  (68 

Miss.  469,  9  So.  297),  160. 


Town  of  Venice  v.  Murdock  (92  TJ. 

S.  494),  243. 
Townsend,  In  re   (39  N.  Y.  171), 

232. 
Townsend  v.  Kurtz   (83  Md.  331), 

201. 
Tracy  v.  Elizabethtown,  etc.  R.  Co. 

(80  Ky.  259),  104. 
Train   v.   Boston,   etc.    (144   Mass. 

523,  59  Am.  Rep.  113),  52. 
Trainor  v.  Board  of  Auditors   (89 

Mich.  162,  15  L.  R.  A.  95),  178, 

202. 
Transportation  Co.  v.  Chicago  (99 

U.  S.  635),  106,  311. 
Travelers'  Ins.  Co.  v.  Oswego    (59 

Fed.  58,  7  C.  C.  A.  69),  178. 
Treadway   v.    Schnauber    (1   Dak. 

233),  257. 
Treadwell  v.  Hancock  Co.  (11  Ohio 

St.  183),  236. 
Trenton  v.  Clayton    (50  Mo.  541), 

164. 
Trescott  v.  Waterloo  (26  Fed.  592), 

317. 

Trustees  of  Aberdeen  Co.  v.  Aber- 
deen (13  S.  and  M.  645),  268. 
Trustees  v.  People  (87  Iowa,  305), 

87. 
Trustees  v.  Tatman    (13  111.  28), 

262,  268. 
Tryon  v.  Pingree    (112  Mich.  338, 

70  N.  W.  Rep.  905,  37  L.  R.  A. 

222),  196. 
Tucker  v.  Howard  (122  Mass.  529), 

175. 
Turner  v.  Board  (L.  R.  9  Eq.  418), 

70. 

Turner  v.  Fish  (19  Nev.  295),  293. 
Turner  v.   Forsyth    (78   Ga.   683), 

370. 
Turner   v.   Newburgh    (109   N.   Y. 

301),  314. 
Turner  v.  Nye   (154  Mass.  578,  14 

L.  R.  A.  487),  102. 
Turner  v.  People's  Ferry  (21  Fed. 

90),  86. 


XCV1 


TABLE  OF   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Tuttle   v.   Everett    (51   Miss.   27), 

218. 
Tuttle,    Ex    parte    (91    Cal.    589), 

165. 
Tyler  v.  Beacher  (44  Vt.  648,  8  Am. 

Rep.  398),  232. 
Tyler  v.  Hudson   (147  Mass.  609), 

101. 

U. 
Underbill  v.  Calhoun  (63  Ala.  216), 

373. 
Underbill  v.  Manchester  (45  N.  H. 

214),  323. 
Union   Bank   v.   Commissioners   of 

Oxford  (119  N.  C.  214),  365. 
Union  Elevated  R.,  In  re   (112  N. 

Y.  61),  108. 
Union  Ferry  Co.,  In  re   (98  N.  T. 

139),  95,  100. 
Union    Pacific    Ry.    Co.    v.    Dodge 

County   (98  U.  S.  541),  217,  218. 
Union  Pacific  Ry.  Co.  v.  Montgom- 
ery (49  Neb.  429,  68  N.  W.  619), 

140. 
United  States  v.  Addison  (6  Wall. 

291),  194. 
United    States    v.    Alexander    (46 

Fed.  728),  203. 
United  States  v.  Baltimore  &  Ohio 

R.  Co.  (17  Wall.,  U.  S.,  322),  16, 

276. 
United  States  v.  Ballin  (144  U.  S. 

1),  172. 
United  States  v.  Brindle  (110  U.  S. 

688),  183. 
United  States  v.  Clough    (55  Fed. 

373,  5  C.  C.  A.  140),  191. 
United  States  v.  Dashiel   (71  U.  S. 

182),  206. 
United   States   v.   Green    (53   Fed. 

769),  198. 
United    States    v.  Macon    County 

Court  (99  U.  S.  582),  365. 
United  States  v.  Morgan  (52  U.  S. 

151),  206. 
United  States  v.  New  Orleans  (98 

U.  S.  381),  113. 


United  States  v.  Prescott  (44  U.  S. 

589),  206. 
United  States  v.  Railroad  Co.   (17 

Wall.  322),  275. 
United  States  v.  Tbomas  (82  U.  S. 

337),  207. 

V. 

Valentine  v.   St   Paul    (34   Minn. 

446),  219, 
Valley   Co.   v.   McLean    (49  U.   S. 

App.  131,  79  Fed.  728),  235,  246. 
Valparaiso  v.  Gardner   (97  Ind.  1, 

49  Am.  Rep.  416),  92,  253. 
Van  Buren,  Petition  of   (79  N.  Y. 

384),  118. 
Van  Hook  v.  Selma  (70  Ala.  361), 

153. 
Vance  v.  Little  Rock  (30  Ark.  435), 

147. 
Vanderbilt  v.  Adams  (7  Cow.  349), 

163. 
Vanderslice    v.    Philadelphia     (103 

Pa.  St.  102),  359. 
Vandines'  Case  (6  Pick.  187),  145. 
Van  Giesen  v.  Bloomfield  (47  N.  J. 

L.  442) ,  292,  293. 
Van  Hoffman  v.  Quincy    (4  Wall. 

535),  270,271. 
Van  Hook  v.  Selma   (70  Ala.  361), 

14,  36. 
Van  Home  v.  Des  Moines  (63  Iowa, 

447,  55  Am.  Rep.  750),  319,  325. 
Van  Orsdale  v.  Hazard  (3  Hill,  N. 

Y.,  243),  198. 
Van  Pelt  v.  Davenport   (42  Iowa, 

308),  355. 
Van  Riper  v.  Parsons  (40  N.  J.  L. 

123),  291,  293. 
Van  Schaick  v.  Sigel  (60  How.  Pr. 

122),  306. 
Van  Winter  v.  Henry  Co.  (61  Iowa, 

684),  314. 
Varner  v.  Martin  (21  W.  Va.  538), 

101. 
Varner  v.  Nobelborough  (2  Me.  121, 

11  Am.  Dec.  48),  222. 


TABLE  OF   CASES   CITED. 


XCV11 


[REFERENCES  ARE  TO  PAGES.] 


Vassar  v.  George   (47  Miss.  713), 

275. 
Vaux  v.   Jefferson    (2  Dyer,  114), 

194. 
Veale  v.  Boston    (135  Mass.  187), 

338. 
Vegelahn   v.    Guntner    (167   Mass. 

92),  146. 
Venable  v.  Wabash  Western  R.  Co., 

(112  Mo.  103),  67. 
Veneman  v.  Jones  (118  Ind.  41,  20 

N.  E.  Rep.  644),  154. 
VestalV.  Little  Rock  (54  Ark.  321, 

11  L.  R.  A.  778),  278,  279. 
Vickery   v.   Chase    (50   Ind.   461), 

299. 
Vicksburg  Water  Co.  v.  Vicksburg 

(185  U.  S.  65),  92,  93. 
Vidal  v.  Girards'  Admrs.   (2  How. 

at  186),  47,  263. 
Village  of  Carterville  v.  Cook  (129 

111.  152),  342. 
Village   of   Carthage   v.   Frederick 

(122  N.  Y.  268,  25  N.  E.  480,  10 

L.   R.   A.   178,   19  Am.   St.   Rep. 

490),  30,  31. 
Village  of  Ponca  v.  Crawford   (23 

Neb.  662,  8  Am.  St.  144),  340. 
Village  of  Rankin  v.  Smith  (63  111. 

App.  522),  338. 

Village  of  Ravenna   v.  Pennsylva- 
nia Co.  (45  Ohio  St.  118,  12  N.  E. 

445),  155. 

Village  of  St.  Johnsbury  v.  Thom- 
son (59  Vt.  300),  144. 
Vincent  v.  Natucket  (12  Cush.  103), 

44. 
Vincennes   v.   Citizens'   G.   L.,   etc. 

Co.    (132  Ind.  114),  92. 
Vincennes    University    v.    Indiana 

(14  How.,  U.  S.,  268),  4,  20. 
Virginia  v.  Plummer   (65  111.  App. 

419),  347. 
Virginia,  etc.  Ry.  Co.  v.  Lyon  Co. 

(6Nev.  68),  236,  237. 
Voegthy  v.  Pittsburgh,  etc.  Ry.  Co. 
(2  Grant's  Cas.,  Pa.,  243) ,  108. 


Vogel  v.  State  (107  Ind.  374),  181. 
Volk  v.  Newark  (47  N.  J.  L.  117), 

148. 
Von  Baa  den  v.  People    (40  Mich. 

258),  56. 
Vose  v.   Frankfort    (64  Me.  299), 

43. 
Voss  v.  Waterloo  Water  Co.   (163 

Ind.  169),  253. 


W. 


Wabash  v.  Pearson  (120  Ind.  426), 

349. 
Wabash  R.  Co.  v.  People   (202  111. 

9) ,  251. 
Wade    v.    Oakmont    (165    Pa.    St. 

479),  251,  253. 
Waggener  v.  Point  Pleasant  (42  W. 

Va.  798),  344. 
Wagner   v.   Rock   Island    (146   111. 

139,  21  L.  R.  A.  519),  261. 
Wagner  v.  Town  of  Garrett   (118 

Ind.  114),  159. 
Wahoo,  City  of,  v.  Reeder  (27  Neb. 

770,  43  N.  W.  1145),  6. 
Wakefield  v.  Newell  (12  R.  I.  75), 

353. 
Walker  v.  Cincinnati   (21  Ohio  St. 

14,  8  Am.  Rep.  24),  231. 
Walker  v.  City  of  Aurora  (140  111. 

402,  39  N.  E.  741) ,  148. 
Walker  v.  Cook    (129  Mass.  577), 

327. 
Wall  v.  Trumbull   (16  Mich.  228), 

305. 
Walla  Walla  Water  Co.  v.  City  of 

Walla  Walla  (60  Fed.  957),  254. 
Walla  Walla  v.  Walla  Walla  Water 

Co.  (172  U.  S.  1),  39,  92,  93. 
Wallace  v.  Lawyer  (54  Ind.  501,  23 

Am.  Rep.  661),  373. 
Wallace  v.  Richmond  (94  Va.  204), 

60. 
Wallace  v.  Trustees  (84  N.  C.  164), 

257. 


XCV111 


TABLE  OP   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Walm  v.  Phila.   (99  Pa.  St.  330), 

137. 
Walnut  Tp.  v.  Wade    (103  U.   S. 

683),  235. 
Walsh  v.  New  York  (41  Hun,  299), 

313. 
Wampler  v.  State  (Ind.,  38  L.  R. 

A.  829),  367. 
Ward  v.  Colfax  Co.  (10  Neb.  293, 

35  Am.  Rep.  477),  206. 
Ward  v.  Greenville  (8  Bax.,  Tenn., 

288),  160. 
Ward  v.  Hartford  County  (12  Conn. 

404),  361. 
Ward  v.  Marshall  (96  Cal.  153,  30 

Pac.  113),  194. 

Ware  v.  Percival  (61  Me.  391),  217. 
Warner    v.    Auditor-General    (129 

Mich.  648),  192. 
Warner  v.  Hoagland  (51  N.  J.  L. 

62),  295. 
Warnock  v.  Lafayette  (4  La.  Ann. 

419),  173. 
Warren  v.  Charlestown    (2   Gray, 

84),  12. 
Warren    v.    Evansville    (106    Ind. 

104),  301. 
Warren  v.  Henley   (31  Iowa,  31), 

121. 
Warren  v.  Westbrook  Mfg.  Co.  (86 

Me.  32,  26  L.  R.  A.  284) ,  353. 
Wartman  v.  Philadelphia    (33  Pa. 

St  202),  59. 
Washburn    v.    Oshkosh    (60    Wis. 

453),  276. 
Washington  Ave.,  In  re  (69  Pa.  St. 

352),  116,  120,  229. 
Washington  Cemetery  Co.  v.  Pros- 
pect Park,  etc.  R.  Co.   (68  N.  Y. 

591),  100. 
Waterbury  v.   Commissioners    (10 

Mont.  515,  24  Am.  St.  67),  373. 
Water   Co.   v.   Hamilton    (81   Ky. 

517),  5. 
Water  Co.  v.  Knoxville  (200  U.  S. 

22),  92. 


Waterer  v.  Freeman    (Heb.  266), 

304. 
Waterloo  Mfg.   Co.  v.   Shannahan 

(128  N.  Y.  345),  103. 
Waters  v.  Leach  (3  Ark.  110) ,  162. 
Watertown  v.  Cady  (20  Wis.  501), 

6. 
Watertown    v.    Mayo    (109    Mass. 

315),  52. 
Watson  v.  Carey    (6  Utah,   150), 

131. 
Watson  v.  N.  Y.,  etc.  Ry.  Co.  (47 

N.  Y.  157),  108. 
Wayne  County  Auditor  v.  Benoit 

(20  Mich.  176),  193. 
Wayne  Co.  Rd.  Com'rs  v.  Auditors 

(148  Mich.  255) ,  258,  260,  267. 
Weaver  v.  Davidson  Co.  (114  Tenn. 

315),  296. 
Weaver  v.  Devendorf   (3  Den.,  N. 

Y.,  117),  315. 
Weaver  v.  Mississippi  &  R.  R.  Boom 

Co.   (28  Minn.  534),  357. 
Webb's  Case  (8  Coke,  45),  194. 
Webb  v.  Demopolis  (95  Ala.  116,  21 

L.  R.  A.  62),  86. 
Webb  v.  Mayor  (64  How.  Pr.  10), 

260,  262. 
Weed  y.  Ballston  Spa    (76  N.  Y. 

329),  342. 
Weeks  v.  Milwaukee  (10  Wis.  258) , 

121. 

Weese  v.  Barker  (7  Colo.  181),  307. 
Weill  v.  Kenfield  (54  Cal.  Ill),  134. 
Weil  v.  Record  (24  N.  J.  Eq.  169), 

160. 
Weinman  v.  Pass.  R.  Co.  (118  Pa. 

St.  192),  294. 
Weis  v.  Madison  (75  Ind.  241),  354, 

356. 
Weismer  v.  Douglas   (64  N.  Y.  91, 

21  Am.  Rep.  586),  232,  276. 
Weiss  v.  Edgerton  Board  (76  Wis. 

177,  7  L.  R.  A.  330) ,  88. 
Weitz    v.    Independent    Dist.     (79 

Iowa,  423),  36,40. 


TABLE  OF   CASES   CITED. 


XC1X 


[REFERENCES  ARE  TO  PAGES.] 


Welker  v.  Potter  (18  Ohio  St.  85) , 

126,  282,  294. 
Weller  v.  Gadsden  (141  Ala.  642), 

92. 
Weller  v.  St.  Paul   (5  Minn.  95), 

121,  358. 

Wells,  Ex  parte  (21  Fla.  280),  293. 
Wells  v.  Buffalo    (80  N.  Y.  253), 

218. 
Wells  v.  Salina   (119  N.  Y.  280,  7 

L.  R.  A.  799),  38. 
Wells  v.  Somerset,  etc.  R.  Co.   (47 

Me.  345) ,  100. 
Wellsborough  v.  New  York,  etc.  Ry. 

Co.   (76  N.  Y.  182),  234. 
Welsh  v.  Boston   (126  Mass.  442), 

49. 
Welsh  v.  Rutland  (56  Vt.  228),  324, 

326,  327,  330,  335,  352. 
Welsh  v.  St.  Louis  (73  Mo.  71),  359. 
Welter  v.  St.  Paul  (40  Minn.  460, 12 

Am.  St.  752),  336. 
Welton  v.  Dickson  (38  Neb.  767,  32 

L.  R.  A.  496),  101. 
Welton  v.  Missouri  (91  TJ.  S.  275) , 

58. 
Werth  v.  Springfield  (78  Mo.  109), 

135. 
Wesch    v.    Common    Council    (107 

Mich.  149,  64  N.  W.  1051),  195. 
Wesson  v.  Collins  (72  Miss.  844,  18 

So.  360,  917),  153. 
Wesson   v.    Saline  Co.    (34   TJ.    S. 

App.  680,  73  Fed.  917),  245. 
West  v.  Lynn  (110  Mass.  514),  346. 
Westbrook   v.   North    (2   Greenlf., 

Me.  179),  71. 
West  Chicago  Park  Com'rs  v.  Mc- 

Mullen    (134   111.  170,   25  N.   E. 

676),  293. 
Western,  etc.  R.  Co.  v.  Atlanta  (113 

Ga.  537),  54. 

Western  Reserve  College  v.  Cleve- 
land (12  Ohio  St.  375) ,  322. 
Western  Savings  Society  v.  Phila- 
delphia (31  Pa.  St.  175),  331. 


Western  Union  Tel.  Co.  v.  Burling- 
ton, etc.  R.  Co.  (11  Fed.  1),  214. 
Westfield  v.  Mayo   (122  Mass.  100, 

23  Am.  Rep.  292),  344. 
Westlake  v.  St.  Louis  (77  Mo.  47), 

219. 
Weston  v.  Syracuse  (17  N.  Y.  110), 

253. 
West  Plains  Tp.  v.  Sage  (32  U.  S. 

App.  725,  69  Fed.  943),  226. 
Westport  v.  Kansas  City  (103  Mo. 

141),  278. 
West  River  Bridge  Co.  v.  Dix   (6 

How.,  U.  S.,  507),  100. 
Wetherell  v.  Devine  (116  111.  131), 

259. 
Weymouth  v.  Com'rs  (86  Me.  391), 

107. 
Weymouth  v.  New  Orleans  (43  La. 

Ann.  344),  330. 

Wharf  Case  (3  Bland,  Ch.  361),  86. 
Wheeler  v.  Cincinnati  (19  Ohio  St. 

19,  2  Am.  Rep.  358),  324. 
Wheeler  v.  Philadelphia  (77  Pa.  St. 

338),  282,  291,  293. 
Wheeler  v.  Plymouth  (116  Ind.  158, 

9  Am.  St.  837,  18  N.  E.  532),  320, 

343. 
Wheeler  v.  Wayne  Co.  (132  111.  599, 

24  N.  E.  Rep.  625),  360. 
Whidden  v.  Drake   (5  N.  H.  13), 

373. 
White  v.  Kent   (11  Ohio  St.  550), 

153. 
White  v.  Marshfield    (48  Vt.  20), 

328. 
White  v.   Meadville    (177   Pa.    St. 

643,  34  L.  R.  A.  567),  84,  86. 
White  v.  People  (94  111.  604),  117, 

120. 

White  v.  Polk  (17  Iowa,  413),  195. 
White  v.  State  (99  Ga.  16),  156. 
White,  In  re  (43  Minn.  250),  164. 
Whitfield    v.    Meridian    (66    Miss. 

570,  14  Am.  St.  296),  336. 
Whitfield  v.  Paris  (84  Tex.  431,  15 

L.  R.  A.  783),  324,  328. 


TABLE   OF    CASES    CITED. 


[REFERENCES  ARE  TO  PAGES.] 

Whiting  v.  Sheboygan,  etc.  Ry.  Co. 
(25  Wis.  167,  3  Am.   Rep.   30), 

230,  231. 
Whiting  v.  Townsend  (57  Cal.  515), 

120. 
Whiting  v.  West  Point  (88  Va.  905, 

15  L.  R.  A.  861),  36,  113,  114. 
Whitney  v.  Port  Huron   (88  Mich. 

268,  26  Am.  St.  291),  136. 
Whitney  v.  Town  of  Ticonderoga 


(127  N.  Y.  40,  27  N.  E.  403),  340. 
Whittaker  v.  Tuolumne  County  (96 

Cal.  100,  30  Pac.  1016) ,  361. 
Whitten  v.  Covington  (43  Ga.  421), 

164. 
Wiggin  v.  St.  Louis  (135  Mo.  558) , 

338. 
Wilcocks,  Ex  parte   (7  Cow.  402), 

172. 
Wilcox  v.  Chicago  (107  111.  337,  47 

Am.  Rep.  434),  326. 
Wilcox  v.  Hearings   (58  Wis.  144), 

35. 

Wilcox  v.  People  (90  111.  186),  200. 
Wilcox    v.    Rochester    (190   N.    Y. 

137),  324. 

Wild  v.  Deig  (43  Ind.  455),  101. 
Wild  v.  Paterson  (47  N.  J.  L.  406) , 

335. 
Wilde  v.  New  Orleans  (12  La.  Ann, 

15),  317. 
Wiley  v.  Blufton    (111  Ind.  152), 

299,  301. 
Willey  v.  Greenfield  (30  Me.  452), 

224. 
Wilkins  v.  Rutland    (61  Vt  336), 

332,  335. 
Wilkinson  v.   Saginaw    (111  Mich. 

285),  192. 

Will    v.    Village   of   Mendon    (108 

Mich.  251),  338. 

Willard's  Appeal  (4  R.  I.  595),  199. 
Willard  v.  Newburyport   (12  Pick. 

227),  34,  82. 

Willard  v.  Presbury  (14  Wall.  676) , 
117. 


Willett  v.  Young  (82  Iowa,  292,  11 

L.  R.  A.  115),  208. 
Willey  v.  Alleghepy  City  (118  Pa. 

St.  490),  331. 
Williams'  Appeal  (72  Pa.  St.  215), 

270. 
Williams  v.  Boynton  (147  N.  Y.  426, 

42  N.  W.  184),  188. 
Williams  v.  Com.  (4  B.  Mon.,  Ky., 

146),  65. 


Williams   v.   Commack    (27   Minn. 

209),  118. 
Williams  v.  Gloucester   (148  Mass. 

256),  202. 
Williams    v.    Nashville    (89   Tenn. 

487,  15  S.  W.  364),  282. 
Williams  v.  New  York  Ferry  Co. 

(105  N.  Y.  419),  86. 
Williams  v.  Pittsburg    (83  Pa.  St. 

71),  107. 
Williams  v.  School  District  (37  Vt. 

271),  101. 
Williams  v.  State   (112  Ala.  688), 

64. 
Williamson   v.   Keokuk    (44   Iowa, 

88),  227,  237. 
Williamson  v.  Lacy  (86  Me.  80,  25 

L.  R.  A.  506),  305. 
Williamson  v.  N.  J.  (130  U.  S.  189), 

114. 
Williamsport  v.  Com.    (84  Pa.  St 

487),  7,  226. 

Wilmington  v.  Von  Degrift  (1  Mar- 
vel Del.  5),  321,  343. 
Wilson,  In  re  (32  Minn.  145),  159, 

164,  371. 
Wilson  v.  Board    (133  111.  443,  27 

N.  E.  209),  282,  299. 
Wilson  v.  Granby    (47  Conn.  59), 

349. 
Wilson    v.    Jefferson    County    .(13 

Iowa,  181),  337. 
Wilson  v.  People,  etc.  (19  Colo.  199, 

22  L.  R.  A.  449),  207. 
Wilson  v.  Rochester    (180  Pa.  St. 

509),  8C. 


TABLE   OF    CASES    CITED. 


Cl 


[REFERENCES  ARE  TO  PAGES.] 


Wilson  v.  School  District  (32  N.  H. 

118),  9. 
Wilson  v.  White    (71  Ga.  506,  51 

Am.  Rep.  269) ,  339,  340. 
Wilson  Co.  v.  First  Nat.  Bank  (103 

U.  S.  770),  237. 
Winbigler  v.  Los  Angeles   (45  Cal. 

36),  335. 
Windere  v.  Des  Moines  (110  Iowa, 

175),  249. 

Winii  v.  Macon  (21  Ga.  275),  43. 
Winn  v.  Rutland  (52  Vt.  481),  358. 
Winona  v.  Cowdry   (93  U.  S.  612), 

236. 
Winona    v.    Thompson    (24    Minn. 

199),  236. 
Winona  v.  Winona  School  District 

(40  Minn.  13,  13  L.  R.  A.  45,  12 

Am.  St.  687),  277,  279,  280. 
Winona  &  St.  P.  Ry.  Co.  v.  Water- 
town    (1   S.   Dak.  46,  44  N.   W. 

1072),  122. 
Winspear    v.    Holman     (37    Iowa, 

542),  6. 
Winston    v.    Spokane     (12    Wash. 

524),  248. 

Winspear  v.  District  Tp.  of  Hol- 
man,   (37  Iowa,  542) 
Wirth  v.  Wilmington  (68  N.  C.  24) , 

148. 

Wisconsin  Keeley  Inst.  v.  Milwau- 
kee Co.    (95  Wis.  153),  62,  113, 

230. 
Wisconsin  Water  Co.  v.  Winans  (85 

Wis.  26,  20  L.  R.  A.  662) ,  101. 
Wistar  v.  Philadelphia  (80  Pa.  St. 

505),  117. 
Witham  v.  Portland  (72  Me.  539), 

346. 
Wixon  v.  Newport  (13  R.  I.  454), 

335,  351. 
Wolcott  v.  Wells   (21  Nev.  47,  37 

Am.  St.  478),  204. 
Wolf,  Ex  parte  (14  Neb.  24),  159. 


Wolff  v.  New  Orleans   (103  U.  S. 

358),  270,  271. 
Wong  Hane,  In  re  (108  Cal.  680,  49 

Am.  St.  138),  143. 
Wood  v.  Brooklyn  (14  Barb.,  N.  Y., 

425),  148. 

Wood  v.  Mears  (12  Ind.  515) ,  78. 
Woodard  v.  Brien   (14  Lea,  Tenn., 

520),  296. 
Woodhull  v.  New  York  (150  N.  Y. 

450),  323. 
Woodruff  v.  Stewart  (63  Ala.  208), 

136. 

Woonsocket,  etc.  Ry.  Co.  v.  Sher- 
man  (8  R.  I.  564),  236. 
Wooster  v.  Mullins  (64  Conn.  340, 

25  L.  R.  A.  694),  195. 
Worcester  Co.   v.   Worcester    (116 

Mass.  193),  122. 
Worcester  Nat.  Bank  v.  Cheney  (87 

111.  602),  307. 
Worcester  Nat.  Bank  v.  Cheney  (94 

111.  430),  294. 
Worden  v.  New  Bedford  (131  Mass. 

23) ,  330,  351. 
Worley  v.  Columbia  (88  Mo.  106), 

315. 
Wormstead    v.    Lynn    (184    Mass. 

425),  43,  212. 

Wragg  v.  Penn  Tp.  (94  111.  23) ,  145. 
Wray   v.    Pittsburgh    (46   Pa.    St. 

365),  117. 
Wright  v.   Boston    (9   Cush.   233), 

118. 

Wright  v.  Defrees  (8  Ind.  298),  174. 
Wright  v.  Nagle   (101  U.  S.  791), 

95. 
Wrought  Iron  Bridge  Co.  v.  Town 

of  Attica  (119  N.  Y.  204),  275. 
Wullenwaber  v.  Dunigan   (30  Neb. 

877,  13  L.  R.  A.  811) ,  230. 
Wyoming  Coal  Co.  v.  Price  (81  Pa. 

St.  156),  101. 

Y. 

Yarnold  v.  City  of  Lawrence   (15 
Kan.  126),  39. 


Cll 


TABLE  OP   CASES   CITED. 


[REFERENCES  ARE  TO  PAGES.] 


Yates  v.  Lansing    (5  Johns.  282), 

304. 
Yates  v.  Milwaukee  (10  Wall.  497), 

54. 
Yates  v.  Royal  Ins.  Co.   (200  111. 

202),  216. 
Yick   Wo   v.   Hopkins    (118  U.   S. 

356),  51,  148,  164,  166. 
York  Co.  v.  Watson  (15  S.  C.  1,  40 

Am.  Rep.  675),  207. 
Yorks  v.  City  of  St.  Paul  (62  Minn. 

250,  64  N.  W.  565),  192. 
Young  v.  Charleston  (20  S.  C.  116, 

47  Am.  Rep.  827) ,  335,  337. 
Young  v.  Clarendon  Tp.  (132  U.  S. 

340),  225,  227. 
Young  v.  St  Louis   (47  Mo.  492), 

133. 
Youngblood   v.    Sexton    (32   Mich. 

406,  2  Am.  Rep.  65),  371. 


Youngs  v.  Hall   (9  Nev.  212),  268, 

298. 

Z. 

Zable  v.  Louisville  Orphan  Asylum 

(13  Ky.   Law,  385,  13  L.  R.  A. 

668),  90,  122. 
Zanesville  v.  Fannan  (53  Ohio  St. 

605,  53  Am.  St.  664),  337,  344. 
Zanone    v.    Mound   City    (103    111. 

552),  150. 
Zeigler  v.  Gaddis  (44  N.  Jv  L.  363), 

296. 
Zeiler  v.  Central  Ry.  Co.   (84  Md. 

304,  34  L.  R.  A.  469),  133,  134, 

172. 
Zottman  v.  San  Francisco  (20  Cal. 

96),  30,  32,  36,  43,  126,  128,  211, 

212,  215. 


PUBLIC  CORPORATIONS. 


CHAPTER  I. 

DEFINITION,  CLASSIFICATION  AND  HISTORY. 


1.  In  general. 

2.  Different    kinds    of    corpora- 

tions. 

3.  Classification  of  public  corpo- 

rations. 

4.  School  districts. 

5.  Distribution  of  powers  and  du- 

ties. 


§   6.  The  county — Its  organization 
and  functions. 

7.  The  township. 

8.  The  town  meeting. 

9.  The  township  elsewhere  than 

in  New  England. 

10.  The  English  municipality. 

11.  The  American  municipality. 


§  1.  In  general. — The  people  residing  within  the  territorial 
limits  of  a  state  constitute  a  public  body,  organized  for  the  pur- 
pose of  self-government.  The  powers  of  state  government  are 
distributed  by  constitutions  among  three  main  departments — 
legislative,  executive  and  judicial — which  take  their  names  from 
the  nature  of  the  powers  conferred  upon  them  respectively.  To 
the  legislative  department  belongs  the  power,  as  incidental  to 
the  making  of  laws,  to  constitute  the  subordinate  agencies  that 
must  be  authorized  to  execute  them,  except  as  such  agencies  may 
have  been  provided  by  the  constitution  itself.  Consequently  it 
establishes  public  officers,  boards,  commissions  and  tribunals — 
often  with  corporate  powers — and  invests  them  with  adminis- 
trative duties.  It  also  subdivides  the  territory  of  the  state,  and 
forms  the  people  who  reside  within  the  subdivisions  into  corpo- 
rations charged  with  the  execution  of  specified  functions  of 
government  within  their  respective  sections.  The  condition  of 
congested,  urban  communities  demands,  as  it  has  demanded 
throughout  the  ages  past,  a  still  broader  delegation  of  adminis- 
trative authority.  The  problems  of  such  communities  are  so 
peculiar  to  themselves,  and  the  greater  part  of  their  concerns  are 
so  purely  local,  that  the  legislature  creates  them  into  auton- 
omous corporations,  and  clothes  them  with  general  powers  of 
local  self-government,  and  with  many  special  privileges  for  the 
i  l 


2  PUBLIC    CORPORATIONS.  [§  2 

supplying  of  the  separate  needs  of  their  own  inhabitants.  They 
differ  from  the  ordinary  territorial  subdivisions  chiefly  in  the 
possession  of  these  special  powers  and  privileges,  granted  for 
the  benefit  of  the  people  of  the  locality,  as  distinguished  from 
the  people  of  the  state  at  large  of  which  they  form  a  part.  Many 
of  these  latter  bodies  are  very  old  and  have  grown  out  of  con- 
ditions which  have  long  since  passed  away.  The  state  has  con- 
firmed their  ancient  privileges,  and  in  addition  has  imposed 
upon  them  many  duties  in  connection  with  the  work  of  public 
administration.  Many  public  corporations  in  this  country  are 
provided  for  in  the  constitution  of  the  state.  Some  are  directly 
established  by  constitution.  Ordinarily,  they  are  inseparably 
connected  with  a  portion  of  the  territory  of  the  state;  but  the 
state  may,  and  often  does,  create  corporations  for  public  pur- 
poses, without  reference  to  territory. 

§  2.  Different  kinds  of  corporations.— The  state  creates  these 
corporations  for  its  own  purposes;  it  may  do  so  without  refer- 
ence to  the  wishes  of  the  people  who  reside  within  the  territory. 
It  also  grants  to  individuals  the  right  or  franchise  of  being  a 
corporation  for  the  purpose  of  advancing  their  private  purposes. 
The  difference  between  the  two  kinds  of  corporations  is  apparent. 
The  one  is  public,  the  other  private.  The  former  may  be  created 
by  the  state  on  its  own  initiative,  and  is  created  to  aid  in  the 
work  of  public  administration  and  the  government  of  the  people. 
The  latter  the  state  consents  to  or  authorizes  for  the  purpose 
of  enabling  individuals  to  conduct  more  advantageously  their 
own  business.  Both  are  corporations  because  both  are  legal 
entities  or  artificial  persons  endowed  with  certain  legal  powers; 
but  they  have  different  objects,  and  are  possessed  of 
different  powers.  Private  corporations  are  the  result  of  con- 
tract; but  public  corporations  are  involuntary,  and  there  is  no 
contractual  relation  between  the  members  or  between  the  mem- 
bers and  the  state.1 

If  the  corporation  was  created  primarily  to  advance  the  per- 

i  Dean  v.  Davis,  51  Cal.  406 ;  Peo-  or  such  as  are  founded  wholly  for 

pie  v.  Morris,  13  Wend.  325,  327;  public  purposes,  and  the  whole  in- 

Bennett's  Appeal,  65   Pa.   St.  242.  terest  in   which   is  in  the  public. 

The  supreme  court  of  New  Jersey  The  fact  of  the  public  having  an  in- 

in  Ten  Eyck  v.  Canal  Co.,  18  N.  J.  terest  in   the  works  or   the  prop- 

L.  200,  at  203  said :    "Public  corpo-  erty  or  the  object  of  a  corporation 

rations  are  political  corporations,  does  not  make  it  a  public  corpora- 


§  2]  DEFINITION,   CLASSIFICATION  AND   HISTORY.  3 

sonal  interests  of  private  persons  by  enabling  them  more  effectu- 
ally to  appropriate  their  property  or  direct  their  energies  to  the 
accomplishing  of  some  design  of  their  own,  it  is  a  private  corpo- 
ration, even  though  the  undertaking  be  one  which  the  state  it- 
self might  enter  upon.  Most  universities  are  private  corpo- 
rations, but  education  is  a  work  which  Jie  state  also  may  and 
does  perform  through  corporations  of  its  own.  Often  a  free 
hospital  or  other  charitable  institution  is  a  private  corporation, 
but  the  state  may  and  does  establish  institutions  of  its  own  for 
similar  purposes. 

It  is  not  always  sufficient  to  identify  such  a  corporation  as 
being  the  state's  own  creature  that  the  state  has  granted  it 
property,  or  has  assisted  it  by  taxation  or  out  of  the  public 
funds.  A  university  may  be  a  private  corporation,  though 
endowed  by  the  state.2  On  the  other  hand  it  does  not  invariably 
prevent  the  corporation  from  being  the  state's  own  creature 
that  it  has  been  endowed,  or  is  supported,  by  private  persons.3 
A  university  may  be  a  public  corporation,  even  though  endowed 
with  donations  from  private  hands;  and  many  public  corpo- 
rations are  authorized  to  administer  trusts  created  by  private 
persons  for  public  benefit.  It  follows  that  the  fact  that  the 
state  has  an  interest  in  a  corporation  does  not  necessarily  make 
the  corporation  a  public  one.4  It  follows  also  that  the  fact  that 
some  private  property  interests  are  involved  in  the  corporation 
does  not  necessarily  render  the  corporation  a  private  one. 
Evidently  the  criterion  to  determine  the  nature  of  the  corpo- 
ration is  not  the  nature  of  the  undertaking  5  or  the  source  of  its 
support,6  but  the  relation  of  the  body  to  the  state.7  This  may 

tion.      All    corporations,    whether  property  or  in  the  objects  of  a  cor- 
public  or  private,  are,  in  contem-  poration,    whether   direct    or   inci- 
plation  of  law,  founded  upon  the  dental  (unless  it  has  the  whole  in- 
principle   that    they   will    promote  terest),    does    not    determine    its 
the  interest  or  convenience  of  the  character   as   a   public   or  private 
public.    A  bank  is  a  private  corpo-  incorporation."    Approved,  Hanson 
ration,  yet  it  is,  in  the  eye  of  the  v.  Vernon,  27  Iowa,  28,  53. 
law,    designed    for    public    benefit.  2  Allen  v.  McKeen,  1  Sumner  276. 
A  turnpike  or  a  canal  company  is  s  Head  v.  Curators,  47  Mo.  220. 
a  private  company,  yet  the  public  •*  Bank  of  United  States  v.  Plant- 
have  an  interest  in  the  use  of  their  ers'  Bank,  9  Wheat.  (TJ.  S.)  904. 
works,  subject  to  such  tolls  and  re-  5  Thompson  v.  Pacific  R.  Co.,  9 
strictions  as   the   charter  has  im-  Wall.  (U.S.)  579. 
posed.       The    interest,     therefore,  «  Cleveland  v.  Stewart,  3  Ga.  283. 
which  the  public  may  have  in  the  1  See    Beach,     Pub.     Corp.,     §  3. 


4  PUBLIC    CORPORATIONS.  [§  2 

depend  upon  implied  legislative  intent.  To  create  a  public 
corporation  it  must  appear  that  the  intent  of  the  legislature  in 
granting  the  incorporation  is  to  create  an  official  agency  of 
government.  Such  organizations  as  cities,  towns,  villages,  coun- 
ties and  townships  are  typical  public  corporations;  others  are 
state  universities,  incorporated  boards  of  commissioners,  trustees 
of  a  county  asylum,  or  of  a  municipal  hospital  or  library. 

An  attempt  has  been  made  to  create  a  third  class  of  corpo- 
rations under  the  name  of  quasi-public  corporations,  and  to  in- 
clude therein  such  as  are  organized  primarily  for  the  benefit  of 
the  members,  but  are  engaged  in  enterprises  in  which  the  pub- 
lic interests  are  directly  involved,  such  as  railway  and  ware- 
house companies.8  But  there  it  is  the  use  and  not  the  corpo- 
ration which  is  of  a  public  nature.  And  it  is  an  old  principle 
of  the  law  that,  when  "private  property  is  affected  with  a  public 
interest,  it  ceases  to  be  juris  privatl  only;"9  or,  as  stated  in  a 
modern  decision,  when  a  person  devotes  his  property  "to  a  use 
in  which  the  public  has  an  interest,  he,  in  effect,  grants  to  the 
public  an  interest  in  that  use,  and  must  submit  to  be  controlled 
by  the  public  for  the  common  good  to  the  extent  of  the  interest 
he  has  created.  He  may  withdraw  his  grant  by  discontinuing 
the  use,  but,  so  long  as  he  maintains  the  use,  he  must  submit  to 
the  control."10 

Corporations  which  have  received  aid  from  the  government 
for  public  purposes  are  sometimes  classed  as  public  corpora- 
tions, but  they  are  private  corporations  charged  with  public 
duties;  and,  in  order  that  they  may  properly  perform  such 
duties,  the  state  grants  to  them  certain  privileges  and  ex- 
emptions. Thus,  the  property  of  such  a  corporation  which  is 
necessary  to  enable  it  to  perform  the  public  duties  with  which  it 

Dartmouth   College  v.   Woodward,  (N.  Y.),  531;  Directors  v.  Houston, 

4  Wheat.  518,  668;  Rundle  v.  Dela-  71  111.  318;  Miners'  Bank  v.  United 

ware,  etc.  Canal,  1  Wall.  Jr.  275-  States,     1    Greene     (Iowa),     553; 

290;    Vincennes   University  v.    In-  State   Bank    v.    Gibbs,    3    McCord 

diana,  14  How.   (U.S.)   268;  Bank  (S.  C.),  377.     See  Andrews,  Amer- 

of  United  States  v.  Planters'  Bank,  ican  Law,  §  371. 

9  Wheat.    (U.   S.)   907;  Bonaparte  »  Miners'  Ditch  Co.  v.  Zellerbach, 

v.  Camden,  etc.  R.  Co.,  1  Bald.  205 ;  37  Cal.  543. 

Alabama  R.  Co.  v.  Kidd,  29  Ala.  »  Lord  Hale  in  De  Portions  Maris, 

221 ;  In  re  New  York,  etc.  R.  Co.  v.  1  Hargrave's  Law  Tracts,  78. 

Metropolitan  Gaslight  Co.,  63  N.  Y.  10  Munn  v.  Illinois,  J4  U.  S.  113. 

326;     Bailey    v.     Mayor,     3    Hill  This     is     the     doctrine     of     the 


§  3]  DEFINITION,  CLASSIFICATION  AND  HISTORY.  5 

is  charged  cannot  be  seized  and  sold  to  satisfy  an  ordinary 
judgment.11  Such  bodies  are  what  the  supreme  court  of  Cal- 
ifornia12 has  designated  as  "corporations  technically  private, 
but  of  a  quasi-public  character,  having  in  view  some  public 
enterprise  in  which  the  public  interests  are  involved. ' ' 

§  3.  Classification  of  public  corporations. — Public  corpora- 
tions fall  into  two  classes:  The  first  are  known  as  municipal 
corporations,  and  what  remains  may  for  want  of  a  better  name 
be  grouped  under  the  head  of  public  gw<m'-corporations.  Dis- 
tinguishing features  of  municipal  corporations  are  the  posses- 
sion of  certain  powers  of  legislation,  and  of  certain  powers  and 
privileges  which  are  to  be  exercised  for  the  particular  benefit 
of  the  inhabitants  of  the  municipality. 

The  corporation  includes  both  the  territory  and  the  inhabit- 
ants residing  therein;13  and  may  be  defined  as  "the  incorpora- 
tion by  the  authority  of  the  government  of  the  inhabitants  of  a 
particular  place  or  district,  and  authorizing  them  in  their  cor- 
porate capacity  to  exercise  subordinate  specified  powers  of  leg- 
islation and  regulation  with  respect  to  their  local  and  internal 


concerns. 


"  14 


"Granger    Cases"    and     "Railroad  for  the  state,  with  the  assistance  of 

Commission  Cases."     Chicago,  etc.  sovereign    powers — the    power    of 

R.  Co.  v.  Iowa,  94  U.  S.  155  (1876)  ;  eminent    domain    and    sometimes 

Peik   v.   Chicago,   etc.,   R.   Co.,   94  that  of  taxation. 

U.  S.  164,  178;  Railroad  Commis-  n  Overton  Bridge  Co.  v.  Means,  33 

sion  Cases,  116  U.  S.  307   (1886)  ;  Neb.  857,  51  N.  W.  Rep.  240,  29  Am. 

Hockett  v.  State,  105  Ind.  250  (tel.  St.  Rep.  514 ;  Gooch  v.  McGee,  83 

co.)  ;    State    v.    Ironton    Gas    Co.,  N.  C.  59;  Baxter  v.  Turnpike  Co., 

37    Ohio    St.    45    (gas    and   water  10  Lea   (Tenn.),  488;  Water  Co.  v. 

cos.)  ;  Spring  Valley  Water  Works  Hamilton,  81  Ky.  517;  Palestine  v. 

v.  Schottler,  110  U.  S.  347,  354.  Barnes,  50  Tex.  538 ;  Gue  v.  Canal 

A  distinction  may  be  made,  how-  Co.,  24  How.  (U.  S.)  257;  Seymour 

ever,    between    g^em-public   corpo-  v.    Turnpike    Co.,    10    Ohio,    476; 

rations  strictly,   such  as  railroad,  Foster  v.  Fowler,  60  Pa.  St.  27.  See 

turnpike  and  canal  companies,  and  infra,  "Alienation  of  Property." 

those    corporations    in    which    the  12  Miners'    Ditch    Co.    v.    Zeller- 

public  is  interested  only  because  of  bach,  37  Cal.  543. 

the    public    service    which     they  is  Kelly  v.  Pittsburgh,  104  U.  S. 

render,  such  as  warehouse,  elevator  78 ;    Galesburg    v.    Hawkinson,    75 

and      express      companies.       The  111.  156 ;  People  v.  Bennett,  29  Mich, 

former  not  only  devote  their  prop-  451 ;  Lowber  v.  Mayor,  5  Abb.  Pr. 

erty  to  a  public  service,   but  per-  (N.  Y.)    325;   Clarke  v.  Rochester, 

form  a  duty  which  is  within  the  24  Barb.   (N.  T.)  446. 

object   of   government,   as   defined  « 1  Dillon,  Mun.  Corp.,  §  20.  The 

by  usage,  and  perform  that  duty  fundamental  idea  of  a   municipal 


PUBLIC   CORPORATIONS. 


[§3 


The  word  "municipal"  is  sometimes  used  in  statutes  as  syn- 
onymous with  public  and  political,  thus  including  all  the  gov- 
ernmental subdivisions  of  the  state.  Thus,  counties  have  been 
held  to  be  "municipal  corporations"  within  the  intent  of  the  pro- 
visions of  certain  statutes,15  although  they  are  not  properly 
municipal  corporations.16 


corporation  is  "the  investing  of  the 
people  of  a  place  with  the  local  gov- 
ernment thereof."  Cuddon  v.  East- 
wick,  1  Salk.  143.  People  v.  Morris, 
13  Wend.  (N.  Y.)  325.  People  v. 
Hurlbut,  24  Mich.  44 ;  State  v.  Mil- 
waukee, 20  Wis.  87 ;  Watertown  v. 
Cady,  20  Wis.  501;  Crane  v.  Fond 
du  Lac,  16  Wis.  196;  Norton  .v. 
Peck,  3  Wis.  714.  The  words  "city" 
and  "village"  refer  only  to  munic- 
ipal corporations.  City  of  Wahoo 
v.  Reeder,  27  Neb.  770,  43  N. 
W.  1145;  Mitchell  v.  Franklin 
Co.,  25  Ohio  St.  143.  A  school  dis- 
trict or  township  is  included  within 
the  phrase  "political  or  municipal 
corporation."  Winspear  v.  Town- 
ship of  Holman,  37  Iowa,  542; 
Curry  v.  Township  of  Sioux  City, 
62  Iowa,  104.  See  School  District 
v.  Williams,  38  Ark.  454.  The 
"Board  of  Park  Commissioners"  of 
the  city  of  Minneapolis  is  not  a 
municipal  corporation.  State  v. 
District  Court,  33  Minn.  235.  The 
city  and  county  of  San  Francisco 
is  a  municipal  corporation,  to  be 
regarded  as  a  city  in  matters  of 
government,  but  the  territory  over 


which  government  is  exercised  is 
at  the  same  time  a  county.  Kahn 
v.  Sutro,  114  Cal.  316,  46  Pac. 
87,  33  L.  R.  A.  620.  As  to  con- 
struction of  the  word  "town,"  see 
Glen  Ridge  v.  Stout,  58  N.  J.  L.  598, 

35  Atl.  913. 

is  Iowa  Land  Co.  v.  Carroll,  39 
Iowa,  151 ;  Heller  v.  Stremmell,  52 
Mo.  309.  In  Dowlan  v.  Sibley  Co., 

36  Minn.  430,  the  court,  in  consid- 
ering the  provision  of  the  statute, 
"that  the  legislature  may,  by  gen- 
eral law  or  special  act,  authorize 
municipal     corporations     to     levy 
assessments     for     local     improve- 
ments,   etc.,"    Dickinson,    J.,   said: 
"The    question    now    presented    is 
whether  the  words  'municipal  cor- 
porations,' as  here  employed,  should 
be  deemed  to  include  counties.     At 
the  time  of  the  adoption  of  this 
amendment,    counties    might    with 
propriety  be  termed  political  corpo- 
rations.   The  statute  declared  them 
to  be  such.     Gen.  Stat.  1866,  ch.  8, 
sec.  75.     They  were  not,  however, 
in  the  proper  and  more  general  use 
of  the  term,  municipal  corporations. 
Yet,  for  the  purposes  of  general  des- 


i6  People  v.  McFadden,  81  Cal. 
489;  Soper  v.  Henry  Co.,  26  Iowa, 
264;  State  v.  Leffingwell,  54  Mo. 
458;  Barton  Co.  v.  Walser,  47  Mo. 
189 ;  Board  of  Park  Com'rs  v.  Com- 
mon Council  of  Detroit,  28  Mich. 
237 ;  Green  Co.  v.  Eubanks,  80  Ala. 
204;  Askew  v.  Hale  Co.,  54  Ala. 
639;  Sherman  Co.  v.  Simons,  109 


U.  S.  735 ;  Laramie  Co.  v.  Albany 
Co.,  92  U.  S.  307 ;  Williamsport  v. 
Commonwealth,  84  Pa.  St.  487. 
Woods  v.  Colfax  County,  10  Neb. 
552;  Hamilton  Co.  v.  Mighels,  7 
Ohio  St.  109.  The  term  "municipal 
corporation"  does  not  include 
towns.  Eaton  v.  Supervisors  of 
Manitowoc  Co.,  44  Wis.  489. 


§3] 


DEFINITION,  CLASSIFICATION  AND  HISTORY. 


Under  the  head  of  public  #w<m-corporations  are  included 
those  bodies  which  are  public  in  their  nature,  but  have  not  the 
general  powers  and  liabilities  of  self-governing  corporations. 
The  term  is  used  to  include  not  only  certain  incorporations  of 
the  inhabitants  of  sections  of  territory,  such  as  counties,  town- 
ships and  school  districts,  but  also  incorporations  of  boards  or 
councils  of  public  officers,  such  as  overseers  of  the  poor,  a  state 
board  of  park  commissioners,  a  local  board  of  education.  In  all 
these  types  the  corporate  functions  are  narrower,  more  specific, 
and  more  strictly  public.  Often  the  corporate  capacity  is 
granted  merely  for  convenience  in  contracting,  in  handling  prop- 
erty, and  in  suing  and  being  sued. 

Most  of  these  #w<m-corporations,  so-called,  are  created  to  act 
purely  as  administrative  agents  of  the  state. 

"They  are  created  for  a  public  purpose  as  an  agency  of  state 
through  which  it  can  most  conveniently  and  effectually  dis- 
charge the  duties  of  the  state  as  an  organized  government  to 
every  person,  and  by  which  it  can  best  promote  the  welfare  of 
all."17 

ignation,  it  is  not  uncommon  to  use  either  a  municipality,  such  as  a  city 
that  term  in  a  sense  including  such  or  town  created  expressly  for  local 
(7«<m-corporations  as  counties  and  self-government,  with  delegated  leg- 
towns,  and  so  sometimes  to  distin-  islative  powers,  or  it  might  be  a 
guish  public  or  political  corpo-  subdivision  of  the  state  for  govern- 
rations  or  functions  from  those  mental  purposes,  such  as  a  county, 
which  would  be  termed  private.  State  v.  Leffingwell,  54  Mo.  458, 
Thus,  in  our  own  decisions  may  475.  *  *  *  Our  consideration  of 
be  found  such  language  as  this :  this  question  has  led  us  to  the  con- 
'A  municipal  corporation, — a  city,  elusion  that  the  words  'municipal 
county  or  town'  (Harrington  v.  corporations'  in  the  proviso  under 
Town  of  Plainview,  27  Minn.  224,  consideration  may  be  reasonably 
229,  6  N.  W.  777),  'a  county  or  construed  as  having  the  broad 
any  other  municipal  corporation,'  rather  than  the  restricted  sense, 
(County  of  Blue  Earth  v.  St.  Paul  and  as  including  such  quasi-corpo- 
&  Sioux  City  R.  Co.,  28  Minn.  503,  rations  as  counties  and  towns." 
507,  11  N.  W.  73).  See,  also,  Win-  IT  Galveston  v.  Posnainsky,  62 
spear  v.  District  Tp.  of  Holman,  Tex.  118;  School  District  v.  Wood, 
37  Iowa,  542 ;  Ex  parte  Selma  &  13  Mass.  193.  As  used  in  our  juris- 
Gulf  R.  Co.,  45  Ala.  696,  732.  In  prudence,  the  term  "corporation" 
considering  a  provision  in  the  applies  to  derivative  creations  only, 
constitution  of  Missouri  forbidding  and  does  not  include  the  state, 
the  creation  of  corporations  by  Des  Moines  Co.  v.  Harker,  34 
special  acts,  'except  for  municipal  Iowa,  84.  1  Andrews,  American 
purposes,'  it  was  said  that  a  cor-  Law,  §  376. 
poration  for  municipal  purposes  is 


PUBLIC   CORPORATIONS.  [  §  4 

The  difference  between  an  administrative  agent  of  the  state 
purely,  and  a  municipal  corporation,  is  set  forth  prominently  in 
the  distinction  usually  made  between  a  county  and  a  city  or  town. 
The  distinction  is  thus  drawn  by  Mr.  Justice  Paxson:  "A 
municipal  corporation  has  for  its  object  the  interest,  advantage 
and  convenience  of  the  locality  and  its  people.  A  county  organi- 
zation is  intended  to  subserve  the  policy  of  the  state  at  large  in 
such  matters  as  finance,  education,  provision  for  the  poor,  military 
organization,  means  of  travel  and  transport,  and  especially  the 
administration  of  justice.  A  municipal  corporation  is  a  govern- 
ment possessing  powers  of  legislation,  and  is  charged  with  a 
general  care  for  the  welfare  of  the  people ;  while  a  county  organi- 
zation is  merely  the  involuntary  agent  of  the  state,  charged  with 
the  interests  of  the  state/in  a  particular  county,  and  clothed  with 
certain  administrative/functions  limited  in  extent  and  clearly 
defined  by  law. " 18  /  - 

§4.  School  districts. — The  administrative  area  for  educa- 
tional purposes  is  a  public  corporation  known  as  a  school  dis- 
trict. Such  area  is  usually  a  territorial  subdivision  of  the  county 
or  township,  according  to  whether  one  or  the  other  is  the  unit 
of  local  government.  Like  all  such  corporations,  its  powers 
are  strictly  limited  to  such  as  are  necessary  for  the  proper  per- 
formance of  the  administrative  duties  with  which  it  is 
charged.  "These  little  corporations,"  says  Mr.  Justice  Bell,19 
"have  sprung  into  existence  within  a  few  years  *  *  *  and 
their  corporate  powers  and  those  of  their  officers  are  to  be  settled 
by  the  construction  of  the  courts  upon  a  succession  of  crude,  un- 
connected, and  often  experimental  enactments.  *  *  *  School 
districts  are  in  New  Hampshire  gwasi-corporations  of  the  most 
limited  powers  known  to  the  law.  They  have  no  powers  derived 
from  usage.  *  *  *  They  have  the  powers  expressly  granted 


is  Williamsport  v.  Comm.,  84  Pa.  purpose,  public,  a  constituent  ele- 
St.  487,  at  499.  "A  county  has  some  ment  in  the  state,  and  a  govern- 
corporate  characteristics,  but  it  is  mental  agency  or  auxiliary,  rather 
not  a  municipal  corporation,  though  than  a  corporation.  All  the  govern- 
often  so  termed.  It  is  an  original  mental  powers  with  which  county 
political  or  civil  division  of  the  officers  are  intrusted  are  the  powers 
state,  created  by  constitutional  au-  of  the  state,  and  all  the  duties  with 
thority  or  statute  for  the  purpose  of  which  they  are  charged  are 
securing  local  suffrage  and  repre-  duties  of  the  state ;  *  * 
sentation  and  also  to  aid  in  the  ad-  Andrews,  American  Law,  §  3' 
ministration  of  government.  It  is  i»  Harris  v.  School  District,  28  N. 
in  its  very  nature,  character  and  H.  58. 


§  5]  DEFINITION,  CLASSIFICATION  AND  HISTORY.  9 

to  them,  and  such  implied  powers  as  are  necessary  to  enable 
them  to  perform  their  duties,  and  no  more."20  Like  counties, 
school  districts  have  been  sometimes  included  within  the  general 
name,  municipal  corporations.21 

§  5.  Distribution  of  powers  and  duties. — The  state  in 
modern  times  makes  very  large  use  of  municipal  corporations  in 
the  work  of  state  government.  But  ordinarily  local  administra- 
tion of  state  affairs  is  conducted  by  the  counties  and  townships. 
The  distribution  of  powers  and  duties  varies  in  the  different 
states.  "We  find  at  the  present  time  three  systems  of  local  admin- 
istration based  upon  the  unit  of  administration:  the  New  Eng- 
land system,  the  Southern  system  and  the  Compromise  system. 
In  the  New  England  system,  the  town,  or  as  it  is  known  in  the 
West,  the  township,  is  the  unit  of  administration,  while  the 
county  is  only  slightly  used.  In  the  Southern  system  the  county 
is  the  administrative  unit,  and  nearly  all  the  administrative  busi- 
ness, not  municipal  in  character  and  not  affecting  education,  is 
centered  in  the  county  officers.  In  some  states  the  county  officers 
attend  to  school  business ;  while  in  others  the  school  district  has 
been  created.  In  some  of  the  Southern  States  there  is  an  area 
lower  than  the  county,  called  the  township,  but  it  is  simply  an 
administrative  district,  and  not  generally  a  corporation.22 

The  Compromise  system  is  the  most  widely  prevalent.  It  de- 
veloped in  New  York  and  Pennsylvania,  and  provides  for  a  dis- 
tribution of  administrative  affairs  somewhat  equally  between 
the  county  and  the  town.  In  the  Pennsylvania,  or  Commissioner 
form  of  this  system,  the  county  authority  consists  of  commission- 
ers elected  by  the  people  of  the  county  at  large;  while  in  the 
Supervisor,  or  New  York,  form,  the  governing  board  consists  of 
supervisors  elected  from  the  towns  of  which  the  county  is  com- 
posed. The  Supervisor  form  is  found  in  New  York,  Michigan, 

20  Wilson  v.  School  District,  32  N.  Iowa,  102.   Contra,  Heller  v.  Strem- 
H.  118;  Foster  v.  Lane,  30  N.  H.  mel,    52    Mo.    309.      Incorporated 
315 ;  Giles  v.  School  District,  31  N.  board  of  public  schools,  see  "The 
H.  304 ;  Scales  v.  Chattahoochee  Co.,  Laws     Relating     to     City     School 
41  Ga.  225 ;  Rogers  v.  People,  68  111.  Boards,"   by  James  C.  Boykin,  in 
154 ;  Beach  v.  Leahy,  11  Kan.  23 ;  Report  of  Commissioner  of  Educa- 
Conklin  v.  School  District,  22  Kan.  tion  for  1895-96,  vol.  1,  ch.  1. 

521 ;  Riddle  v.  Merrimack  River  22  Goodnow,  Principles  of  Admin- 
Locks,  7  Mass.  169,  5  Am.  Dec.  35.  istrative  Law,  182  ct  seq.;  Howard, 

21  Winspear  v.   District,  etc.,  37  Local  Const.  Hist.,  I,  ch.  IX. 
Iowa,   542;   Curry   v.   District,   62 


10  PUBLIC   CORPORATIONS.  [§  6 

Illinois,  Wisconsin,  Nebraska,  and  in  a  modified  form  in  Vir- 
ginia.23 The  Commissioner  plan  is  found  in  Pennsylvania, 
Ohio,  Indiana,  Iowa,  Kansas  and  Missouri,  and  in  a  modified  form 
in  Maine,  Massachusetts,  Minnesota  and  the  Dakotas,  and  has 
"very  generally  been  adopted  as  the  form  for  the  county  au- 
thority in  the  commonwealths  of  the  South,  where  there  are  in 
the  county  generally  no  lesser  districts  to  be  represented."  24 

§6.    The    county— its    organization    and    functions. — The 

American  county  was,  in  the  first  instance,  "a  frontier  copy 
of  the  English  shire,"  although  its  growth  affords  no  analogy 
to  that  of  its  English  prototype.  The  shire  is  an  historical  unit 
with  boundaries  as  natural  as  that  of  the  nation,  while  our  coun- 
ties have  been  deliberately  "laid  out"  as  a  part  of  the  machinery 
for  the  administration  of  the  government  of  the  state.25 

In  the  West  and  Southwest  the  adaptability  of  the  county  to 
the  needs  of  a  widely-scattered  population  led  to  its  adoption 
as  the  chief  organ  of  local  government,  while  the  mental  char- 
acteristics of  the  early  inhabitants  of  the  Eastern  states,  and 
the  conditions  imposed  upon  them  by  religious  and  climatic  in- 
fluences, there  led  to  the  adoption  of  the  township  as  the  ad- 
ministrative unit.  Natural  conditions  have  modified  both  the 
county  and  the  township  in  the  Western  states.  The  Southern 
settlers  adopted  the  county  as  the  unit  of  administration,26  while 
the  immigrants  from  New  England  carried  with  them  their  ideas 
of  the  importance  of  the  town  and  the  town  meeting.  In  New 
England  the  county  was  originally  created  solely  for  judicial 
purposes,  although  in  the  process  of  time  certain  other  functions 
have  been  taken  from  the  township  and  conferred  upon  it.  In 
the  West  and  Northwest  the  township  and  the  county  exist  side 
by  side  with  carefully  differentiated  functions.  The  power  and 


23  Howard,  Local  Const.  Hist,  I,  vital  principle  of  their  governments, 

p.  439.  and  have  proved  themselves  the 

24 1  Goodnow,  Comparative  Ad-  wisest  inventions  ever  devised  by 

ministrative  Law,  p.  180.  the  wit  of  man  for  the  perfect  exer- 

25  Wilson,  The  State,  §  1026.  cise  of  self-government  and  for  its 

26  Doubtless  because  of  the  nature  preservation.     *     *     *     As   Cato, 
of  the  country  and  the  character  of  then,  concluded  every  speech  with 
the  people,  but  contrary  to  the  ad-  the  words,  'Carthago  delenda  est,' 
vice  of  its  early  statesmen.    Jeffer-  so  do  I  every  opinion  with  the  in- 
son  wrote:     "Those  wards  called  junction,  'Divide  the  counties  into 
townships  in  New  England  are  the  wards.' "    Works,  VI,  544. 


§  7]  DEFINITION,  CLASSIFICATION  AND  HISTORY.  11 

importance  of  the  county  consequently  depends  much  upon  its 
location,  and  this  must  not  be  lost  sight  of  in  determining  the 
bearing  of  the  decisions  of  the  various  states.     Thus,  in  New 
England,  where  its  powers  are  most  restricted,  its  functions 
scarcely  extend  beyond  the  maintenance  of  county  buildings,  the 
granting  of  certain  licenses  and  a  partial  control  over  highways, 
while  in  the  South  it  has  a  complete  set  of  officers  and  is  prac- 
tically charged  with  the  entire  local  government.     Under  the 
common  form  of  organization  we  find  the  county  commissioners, 
and  under  their  general  supervision  a  county  treasurer,  auditor, 
superintendent  of  education,  superintendent  of  roads  and  a  su- 
perintendent of  the  poor.     On  the  judicial  side  there  is  the 
sheriff,  clerk  of  courts,  surrogate  or  ordinary  or  probate  judge, 
and  the  state's  attorney,  who  frequently  acts  for  a  judicial  dis- 
trict composed  of  several  counties.    Where  the  township  exists 
the  county  organization  varies  greatly,  almost  the  only  common 
point  of  resemblance  being  its  control  over  the  administration 
of  justice.     The  county  commissioners  are  variously  elected  and 
constituted.     Under  the  Commissioner  system,  as  in  Indiana, 
Pennsylvania,  Ohio,  Iowa,  Kansas  and  Minnesota,  they  are  elected 
by  the  electors  of  the  county,  while  under  the  Supervisor  system 
of  New  York,  Michigan,  Illinois,  Nebraska  and  Wisconsin,  the 
board  is  composed  of  all  the  township  supervisors.     Somewhat 
wider  powers  seem  to  be  granted  where  the  Commissioner  system 
exists.    In  Rhode  Island  the  only  county  officers  are  those  con- 
nected with  the  administration  of  justice.     Elsewhere  than  in 
New  England  the  administration  of  schools,  the  relief  of  the 
poor,  the  construction  and  maintenance  of  highways  and  matters 
of  sanitation,  and  the  control  of  the  police,  commonly  falls  to 
townships,  while  the  county  is  charged  with  the  administration 
of  justice,  the  maintenance  of  jails,  court-houses  and  poor-houses, 
and  the  equalization  of  taxes.    Wherever  found,  however,  coun- 
ties are  public  gwasi-corporations  and  possess  such  powers  only 
as  are  conferred  upon  them  by  statute. 

§  7.  The  township. — The  township  is  older  than  the  county 
or  the  English  shire.  It  is  the  lineal  descendant  of  the  ancient 
Germanic  mark,  and  was  revived  by  the  early  settlers  of  New 
England  as  best  adapted  to  their  condition.  It  was  "a  case  of 
revival  of  organs  and  functions  on  recurrence  of  the  primitive 


12  PUBLIC   CORPORATIONS.  [  §  8 

environment. ' ' 27  These  towns  were  from  the  first  the  adminis- 
trative units,  but  were  ultimately  grouped  for  judicial  purposes 
into  counties,  to  which  certain  of  their  functions  were  trans- 
ferred. This  system  of  government  by  the  town  meeting  is  prac- 
ticable only  where  the  numbers  who  are  to  participate  are 
limited  and  the  capacity  for  self-government  is  highly  devel- 
oped. Hence,  while  the  system  is  still  efficient,  it  has  been 
somewhat  impaired  by  the  influx  of  a  foreign  population,  un- 
trained in  self-government,  and  by  the  growth  of  great  cities. 

§8.  The  town  meeting.— A  New  England  town  is  the  best 
modern  representative  of  a  pure  democracy.  All  the  qualified 
voters  of  the  territory  are  members  of  the  corporation,  and  meet 
at  certain  periods  as  a  general  assembly  for  the  transaction  of 
the  business  of  the  community.  The  representative  system  is 
not  used,  and  each  voter  is  entitled  to  participate  personally  in 
the  work  of  government.  The  regular  annual  sessions  are  gen- 
erally held  in  the  spring  of  the  year.  They  are  presided  over  by 
a  moderator  and  are  attended  by  the  town  officers,  who  render 
their  accounts  for  the  year  and  their  estimates  of  the  money  re- 
quired for  the  ensuing  year.  The  meeting  approves  or  disap- 
proves of  the  action  of  its  officers  and  elects  their  successors. 
The  organization  of  the  towns  is  not  entirely  uniform,  although 
they  are  all  apparently  formed  upon  one  model,  established  by 
general  laws.  The  officers  are  commonly  from  three  to  nine 
selectmen,  a  town  clerk,  a  treasurer,  a  collector  of  taxes,  asses- 
sor, a  school  committee,  and  such  other  minor  officers  as  con- 
stables, library  trustees  and  surveyors  of  highways.  All  the 
executive  functions  of  local  government  are  in  the  hands  of  these 
officials,  governed  largely  by  general  statutes.  The  taxes  for  the 
payment  of  county  expenses  are  apportioned  by  the  counties, 
but  are  raised  by  the  towns.28 

27  Howard,  Local  Const.  Hist,  I,  Bloomfleld   v.   Charter  Oak  Bank, 
ch.  2;  Adams,  Germanic  Origin  of  121  U.  S.  121;  Quincy's  Memorial 
New    England    Towns,    J.    H.    U.  Hist,  of  Boston,  ch.  1 ;  Bryce,  Aruer- 
Studies,  1st  Series,  No.  11.     Criti-  ican   Commonwealth,   chs.   48,   49; 
cised,  Doyle,  The  Puritans,  I,  p.  74.  Howard's  Local  Const.  Hist,  of  the 

28  Warren  v.  Charlestown,  2  Gray,  U.    S.,    vol.    1,    ch.    2 ;    Freeman's 
84 ;  Hill  v.  Boston,  122  Mass.  344 ;  Growth  of  the  English  Constitution, 
Commonwealth  v.  Roxbury,  9  Gray,  17 ;    Lecky,    History   of   the   Eigh- 
451 ;  Eastman  v.  Meredith,  36  N.  H.  teenth  Century,  I,  387 ;  John  Stuart 
284.     For  the  history,  organization  Mill,  Representative  Government,  p. 
and  value  of  the  town  meeting,  see  G4 ;    May,    Constitutional    Hist,   of 


§  9]  DEFINITION,   CLASSIFICATION  AND  HISTOEY.  13 

§9.  The  township  elsewhere  than  in  New  England. — The 
New  England  township  sprang  out  of  the  church,  the  Western 
township  out  of  the  school.  In  the  West  the  government  sur- 
veyor preceded  the  settler,  and  laid  out  the  land  into  regular 
squares  to  which  he  gave  the  name  of  townships;  and  of  each 
of  these  congress  reserved  two  square  miles  for  the  endowment 
of  schools.  The  organization  necessary  for  the  administration 
of  this  grant  became  the  basis  of  the  township  as  a  political 
organization.  The  township  was  organized  on  the  county.  ' '  The 
Northwestern  township,"  says  Dr.  Wilson,29  "is  more  thor- 
oughly integrated  with  the  county  than  is  the  New  England 
township.  County  and  township  fit  together  as  pieces  of  the 
same  organization.  In  New  England  the  township  is  older  than 
the  county,  and  the  county  is  a  grouping  of  townships  for  cer- 
tain purposes;  in  the  Northwest,  on  the  contrary,  the  county 
has  in  all  cases  preceded  the  township,  and  townships  are  divi- 
sions of  the  county.  The  county  may  be  considered  as  the  cen- 
tral unit  of  local  government ;  townships  are  differentiated  with- 
in it." 

The  township  organization  is  strongest  in  the  East  and  weak- 
est in  the  South.  It  has  been  most  generally  accepted  in  New 
York,  Pennsylvania,  Ohio,  Indiana,  Kansas,  Michigan,  Wiscon- 
sin, Illinois  and  Minnesota.  "In  the  states  of  this  group,"  says 
Prof.  Howard,  "localism  finds  its  freest  expression:  the  town 
meeting  possesses  powers  commensurate  with  the  requirements 
of  modern  life;  the  primitive  and  proper  nexus  between  scir 
and  tunscipe  is  restored ;  the  township  is  under  the  county  but 
represented  there.  The  county  board  of  supervisors  is  the  old 
scire-moot  over  again.  The  township-county  system  of  the  North- 
west is  one  of  the  most  perfect  products  of  the  English  mind, 


England,  II,  460;  De  Tocqueville,  Hosmer's  Life  of  Samuel  Adams, 
Democracy  in  America,  I,  ch.  V,  p.  ch.  XXIII  (American  Statesmen 
56;  Adams,  Germanic  Origin  of  N.  Series),  and  the  same  learned  au- 
E.  Towns,  Johns  Hopkins  Univ.  thor's  work  on  "Anglo-Saxon  Free- 
Studies,  1st  Series,  No.  11,  p.  5;  dom,"  ch.  XVII.  For  a  Tory  esti- 
Channing,  Town  and  County  Govt.  mate  of  the  town  meeting  see  the 
in  the  New  England  Colonies  of  N.  letters  of  Gov.  Hutchinson  in  Hos- 
Am. ;  J.  Toulmin  Smith,  Local  Self-  mer's  Life  of  Hutchinson. 
Government  and  Centralization,  29.  20  Shaw,  Local  Government  in 
1  Andrews,  American  Law,  §  378.  Illinois,  p.  10. 
Special  attention  is  directed  to 


14  PUBLIC   CORPORATIONS.  [§  10 

worthy  to  become,  as  it  may  not  improbably  become,  the  pre- 
vailing type  in  the  United  States."30 

In  the  far  West,  in  states  such  as  California,  Oregon  and  Ne- 
vada, the  county  is  the  unit  of  government,  although  the  town- 
ship is  well  developed  in  California.  Virginia  has  had  a  complete 
township  system  since  1870,  and  the  tendency  throughout  the 
South  and  West  seems  to  be  toward  the  strengthening  of  the 
township.  Its  organization  differs  according  to  its  development, 
ranging  from  the  pure  democracy  of  New  England  to  the  rep- 
resentative system  of  the  West.  Where  the  departure  from 
the  original  type  is  greatest,  the  town  meeting  has  given  place  to 
the  ordinary  process  of  election.  The  selectmen  are  nowhere 
found  outside  of  New  England,  but  their  functions  are  dis- 
charged by  supervisors,  who  have  general  charge  of  the  affairs  of 
the  township.  These  officers  vary  in  number  from  one  to  three, 
and  are  sometimes,  as  in  Ohio,  designated  as  trustees.  The  pow- 
ers of  all  townships  are  such  and  such  only  as  are  conferred  on 
them  by  statute.31 

§  10.  The  English  municipality. — The  origin  of  our  munici- 
palities is  found  very  far  back  in  English  history.32  The  thickly- 
settled  communities  in  England  always  had  a  peculiar  organiza- 
tion. From  the  beginning  of  the  Norman  period  the  inhabitants 
of  a  town  owed  certain  payments  to  the  crown,  which  were  col- 
lected by  the  sheriff,  who  was  the  fiscal  representative  of  the 
crown.  The  large  towns  or  boroughs  finally  contracted  to  pay  a 
fixed  sum,  which  they  were  allowed  to  raise  in  such  manner  as 
they  saw  fit.  This  privilege  was  called  the  firmi  burgi.  It  was  in 
fact  a  lease  of  the  town  to  its  inhabitants.  For  the  collection  of 
this  quota,  the  people  under  the  supervision  of  the  crown  select- 
ed an  officer,  who  was  called  the  fermor  or  mayor.  In  considera- 
tion of  the  payment  of  a  sum  of  money,  the  crown  also  granted 
to  the  inhabitants  of  a  special  district  the  privilege  of  holding  a 
court,  and  exempted  them  from  the  jurisdiction  of  the  sheriff's 
tourn.  which  was  the  ordinary  crown  court.  The  union  of  these 


so  Local   Self -Government  in  the  Emery,  14  Me.  375. 

United  States,  I,  p.  15S,  quoted  in  s2  This  and  the  following  section 

Hosmer's  Anglo-Saxon  Freedom,  p.  are  taken  largely  from  Prof.  Good- 

290.  now's  valuable  work  on  Compara- 

si  Bloomfield     v.     Charter     Oak  tive  Administrative  Law. 
Bank,   121   U.    S.   121;   Hooper  v. 


§  10]  DEFINITION,  CLASSIFICATION  AND  HISTORY.  15 

privileges,  known  as  the  court  leet  and  the  firmi  burgi,  constitut- 
ed an  incorporated  borough.  The  townsmen,  meeting  in  court 
leet,  found  it  a  natural  and  easy  matter  to  assume  such  other 
functions  as  were  necessitated  by  the  presence  of  a  large  number 
of  persons  in  a  small  district.  They  established  rules  as  to  partic- 
ipation in  the  court  leet  and  as  to  the  election  of  a  mayor  or 
provost.  The  general  rule  was  that  no  one  could  participate  in 
the  leet  who  did  not  pay  taxes,  was  not  a  householder,  and  was 
not,  in  the  eye  of  the  law,  capable  of  participating  in  the  admin- 
istration *of  justice.  In  the  quaint  language  of  the  period,  only 
those  could  be  members  of  the  court  leet  who  were  freemen  house- 
holders, paying  scot  and  bearing  lot;  and  the  formal  criterion 
of  the  existence  of  these  qualities  in  a  given  person  was  the  fact 
that  he  had  been  sworn  and  enrolled  in  the  court  leet.  This  body 
had  thus  the  ultimate  decision  as  to  the  qualifications  of  municipal 
citizenship. 

After  the  formation  of  parliament,  the  quota  of  the  borough, 
was  fixed  by  that  body,  and  nothing  remained  to  be  done  by  the 
town  but  to  assess  the.  quota.  The  judicial  system  also  underwent 
a  change.  The  royal  courts  gradually  absorbed  all  judicial  func- 
tions, and  the  court  leet  became  a  jury  for  the  determination 
of  questions  of  fact.  Such  questions  and  the  assessment  of  the 
quota  could  be  more  easily  settled  by  a  committee  than  by  the 
large  assembly,  and  the  result  was  a  formation  of  a  committee 
of  the  original  court  leet  for  the  transaction  of  both  financial 
and  judicial  business.  This  committee  gradually  assumed  the 
performance  of  all  municipal  business.  It  was  composed  of  the 
largest  taxpayers,  who  generally  also  held  the  commission  of  the 
peace.  The  smaller  taxpayers  gradually  lost  their  equal  privi- 
leges by  neglecting  to  exercise  them.  As  social  and  economic 
conditions  changed,  the  qualifications  for  membership  changed. 
In  the  larger  cities  membership  in  one  of  the  great  trade  guilds 
became  essential  to  the  exercise  of  municipal  functions.  The 
limited  body  thus  organized  became  finally  the  borough  council 
or  leet  jury.33 

About  this  time  the  crown  began  to  grant  charters  of  incor- 
poration to  the  body  of  rich  and  influential  citizens  who  consti- 

ss  See    Gneist,    Self-Government,  For  a  description  of  modern  Eng- 

318-325  ;   Const.  Hist,  of  England,  lisli  municipal  corporations,  see  Pol. 

II,  pp.  140,  141 ;   Pollock  &  Malt-  Sci.  Quar.,  IV,  pp.  197,  216. 
land,  Hist,  of  Eng.  Law,  I,  p.  625. 


16  PUBLIC   CORPORATIONS.  [§11 

tuted  the  town  council.  The  original  object  was  to  enable  the 
district  to  hold  property  and  to  sue  and  be  sued.  Finally  these 
bodies  were  granted  representation  in  parliament,  and  there- 
after their  charters  were  granted  and  revoked  by  the  crown 
when  necessary  to  increase  or  maintain  the  political  influence 
of  the  crown  in  parliament.34  The  result  was  the  system  of 
rotten  boroughs  so  well  known  in  history. 

§  11.  The  American  municipality. — The  early  American  mu- 
nicipalities were  modeled  upon  the  English  municipality  as  it 
existed  in  the  seventeenth  century.  The  city  authority  was  in 
the  town  council,  which  was  composed  of  the  mayor,  recorder, 
aldermen  and  councilmen.  They  were  organized  for  the  satis- 
faction of  purely  local  needs,  such  as  the  management  of  the 
corporate  property  and  finances,  and  the  enactment  of  local 
police  ordinances.  The  affairs  of  the  colony  within  the  munici- 
pality were  attended  to  by  a  body  of  officers  similar  to  those 
in  the  county  and  rural  districts.  But  gradually  the  munici- 
palities lost  their  local  character  and  began  to  be  used  by  the 
state  as  agencies  of  the  state  government.  The  corporation, 
which  originally  consisted  of  the  members  of  the  council,  came 
to  be  regarded  as  consisting  of  the  people  residing  within  the 
district.  The  state  made  use  of  the  city  officials  for  the  pur- 
poses of  state  administration,  and  used  the  municipality  as  an 
agent  for  the  collection  of  taxes.  The  cities  thus  largely  lost 
the  power  of  regulating  their  purely  local  affairs;  and  instead 
of  being  organs  for  the  satisfaction  of  local  needs  in  accordance 
with  the  wishes  of  the  inhabitants,  became  the  agencies  of  the 
state  government,  very  much  in  the  same  manner  as  counties 
and  other  such  subdivisions  of  the  state.33 

The  plan  of  organization  also  changed.  Instead  of  the  con- 
solidation of  powers  and  functions  in  the  council,  they  were 

«4  Dillon,  Mun.  Corp.,  I,  §  18 ;  Alii-  The   justices   of   assize  especially 

son  &  Penrose,  Hist,  of  Phila.,  p.  10 ;  abused  their  official  powers  to  this 

Rex  v.  London,  8  Howell,  St.  Trial,  end.    Jeffreys,  on  the  northern  cir- 

1039.      The    judgment    passed    on  cuit,  "made  all  charters  fall  before 

London  was  followed  by  similar  in-  him  like  the  walls  of  Jericho,  and 

formations  against  the  other  towns,  returned  to  London  laden  with  sur- 

Most  of  the  towns  anticipated  the  renderings,  the  spoils  of  the  towns." 

attack  by  voluntarily  surrendering  Gneist.  Const.  Hist,  of  England,  I", 

their    charters,    in    the    place    of  p.  308. 

which    they    received    new    ones  35  United  States  v.  B.  &  O.  Ry. 

"after     a     conservative     pattern."  Co.,  17  Wall.   (U.  S.)  322 


§11] 


DEFINITION,  CLASSIFICATION  AND  HISTORY. 


17 


separated  and  distributed  among  the  council  and  the  executive 
officers.  The  duty  of  deliberation  is  now  generally  left  to  the 
council,  although  it  often  exercises  administrative  power;  while 
that  of  execution  and  administration  is  left  to  officers  selected 
for  that  purpose.36 


se  The  forms  of  city  government. 
— The  corporate  powers  of  munici- 
palities are  usually  vested  in  a  de- 
liberative assembly  or  council,  com- 
posed of  representatives  elected  by 
the  voters.  This  council  is  a  lineal 
descendant  of  the  court  leet,  or  com- 
mon council,  of  the  original  Eng- 
lish borough.  The  primitive  bor- 
ough-court was  an  assembly  of  all 
the  freemen  of  the  borough ;  but  in 
time  an  official  head,  the  mayor, 
was  developed,  and  a  select,  repre- 
sentative body.  To  this  select 
body,  with  the  mayor  as  its  head, 
the  powers  of  the  corporation  were 
later,  by  usage  and  by  the  terms  of 
charters,  entrusted. 

Charters  of  cities  and  boroughs 
in  the  American  Colonies  followed 
the  English  form.  Usually  the 
select  body  consisted  of  the  mayor 
as  presiding  officer,  the  recorder  as 
clerk,  and  two  classes  of  repre- 
sentatives, the  aldermen  and  the 
councilmen;  and  the  assembled 
council,  wielding  the  jurisdictions 
of  the  corporation,  consisted  of 
these  three  integral  parts,  a  speci- 
fied number  or  a  majority  of  each 
class,  beside  the  mayor,  being  requi- 
site to  a  quorum.  In  most  bor- 
oughs the  mayor  was  appointed  by 
the  provincial  governor,  but  in 
some  was  elected  by  the  council. 
The  aldermen  and  councilmen  were 
generally  elected  by  the  freemen; 
but  in  three  boroughs,  in  which 
they  held  office  for  life,  they  were 
elected  by  the  council  itself,  thus 
constituting  a  close  corporation. 

After  the  Revolution  the  mayors 


came  to  be  elected  by  the  councils 
from  among  their  own  numbers,  or 
in  some  cases  by  the  inhabitants. 
The  entire  council  long  continued 
to  exercise  both  the  legislative  and 
the  executive  powers  of  the  corpo- 
ration, the  latter  either  directly 
through  various  committees,  or 
vicariously  through  the  mayor  or 
through  officers  appointed  and  di- 
rected by  itself. 

Toward  the  middle  of  the  nine- 
teenth century,  the  need  of  fixing 
and  enforcing  responsibility  for 
executive  efficiency  caused  charters 
to  be  framed  so  as  to  assign  the  dif- 
ferent executive  departments  to 
superintending  heads,  elected  by  the 
people.  Some  departments  which  ad- 
ministered purely  state  functions, 
were  wholly  severed  from  the  cor- 
porate structure  and  placed  under 
statutory  direction ;  and  in  many 
instances  their  heads  have  since 
been  made  appointable  and  remov- 
able by  the  governor.  The  call  for 
centralization  continued,  and  was 
ultimately  accomplished  by  the 
practice  in  charters  of  charging  the 
mayor  with  the  duty  of  appointing 
the  superintendents  of  the  ordi- 
nary departments,  and  of  supervis- 
ing their  work.  The  mayor  has 
thus  been  made  an  executive  head 
of  the  municipality — often  still 
presiding  in  the  council  and  there 
having  a  casting  vote,  but  usually 
wholly  severed  from  that  body, 
though  invested  with  a  veto  power. 

At  the  dawn  of  the  twentieth 
century,  the  typical  city  government 
consists  of  a  single  representative 


18 


PUBLIC   CORPORATIONS. 


[§11 


body — a  council  or  board  of  alder- 
men  consisting  of  representatives 
elected  from  the  different  wards — 
a  mayor  elected  by  the  people,  and 
a  variety  of  executive  departments 
under  superintendents  appointed  by 
the  mayor  with  or  without  the  con- 
sent of  the  council,  and  removable 
by  him  for  cause.  Yet  in  many 
cities,  such  important  officers  as 
treasurer,  controller,  city  solicitor, 
and  city  clerk,  are  elected  by  the 
council,  or  by  the  voters ;  and  the 
details  of  the  scheme  vary  greatly. 

The  province  of  the  council  is  to 
enact  police  ordinances,  standing 
administrative  ordinances,  and  in- 
itiatory ordinances  for  special 
works,  and  to  make  the  necessary 
appropriations.  The  province  of 
the  executive  departments  is  to 
maintain  the  works  in  their  charge 
respectively,  to  carry  out  the  meas- 
ures decided  upon  by  the  council, 
determine  the  technical  or  admin- 
istrative details,  and  make  the  con- 
tracts and  purchases  therefor — al- 
ways within  the  limit  of  some  an- 
nual or  special  appropriation,  sub- 
ject to  the  charter  and  the  stand- 
ing ordinances  of  the  council,  and 
to  the  direction  and  supervision  of 
the  mayor. 

Corruption,  inefficiency,  and  the 
never-ending  results  of  political 
chicanery,  have  led  recently  to  one 
more  step  in  the  concentration  of 
authority  and  responsibility.  This 
has  been  taken  in  what  is  known  as 
the  commission  plan.  The  first  and 
most  radical  type — the  Galveston 
form — vested  the  entire  government 
of  the  city  iu  a  commission  ap- 


pointed by  the  governor.  The 
second — the  Des  Moihes  form — 
which  has  been  adopted  (perhaps 
over-hastily)  in  many  other  cities, 
provides  for  a  mayor  and  four  al- 
dermen to  be  elected  from  the  city 
at  large,  without  party  designa- 
tion, for  a  term  of  two  years,  who 
constitute  collectively  the  city 
council.  In  them  as  a  council  is 
combined  all  the  legislative  and 
initiative  authority  of  the  city, 
with  power  to  appoint  the  subordi- 
nate municipal  officers.  Its  meet- 
ings are  presided  over  by  the  mayor 
but  without  veto  power.  The  im- 
portant feature  of  the  plan  is  that 
by  which  the  executive  work  of  the 
city  is  divided  among  five  depart- 
ments, and  the  five  members  of  the 
council  are  required  separately  to 
act  as  executives — each  as  superin- 
tendent of  one  of  the  departments. 
As  the  system  of  government  so 
framed  is  adapted  chiefly  to  the 
needs  of  efficient  executive  service, 
there  is  inserted  in  it,  to  secure  the 
popular  voice  in  important  meas- 
ures, a  popular  right  of  initiative 
and  of  compulsory  referendum  in 
legislation.  The  great  power  com- 
bined in  a  few  men  is  sought  to 
be  offset  by  the  popular  right  of 
recall  during  the  term  of  office. 
The  power  of  the  legislature  to 
create  such  a  form  of  city  govern- 
ment is  affirmed,  and  various  con- 
stitutional questions  are  disposed 
of,  in  Eckerson  v.  Des  Moines,  137 
la.  452,  115  N.  W.  177 ;  Graham  v. 
Roberts,  200  Mass.  151.  The  Gal- 
veston charter  was  upheld  in  Brown 
v.  Galveston,  97  Texas  1. 


CHAPTER  II. 

THE  CREATION  OF  PUBLIC  CORPORATIONS. 


i  12.  Source  of  creation. 

13.  Power  of  Congress  to  create. 

14.  Power   of   territorial   legisla- 

tures to  create. 

15.  Creation  by  implication. 

16.  Invalid  organization.  De  facto 

corporations. 

17.  Presumption     of     creation. — 

Prescription. 

18.  Creation  by  recognition. 


§  19.  Name  and  boundaries  of  ter- 
ritory. 

20.  Authority  of  a  legislature  to 

invest  with  power. 

21.  Compulsory  incorporation. 

22.  Compulsory  changes  in  char- 

ters. 

23.  Form  of  legislation. 

24.  Form    of    proceedings    under 

general  laws. 


§  12.  Source  of  creation. — The  power  to  erect  subordinate 
corporations  to  act  in  local  administration,  either  as  bare  instru- 
mentalities of  the  central  government  or  as  municipal  bodies,  is 
a  power  inherent  in  sovereignty.  In  our  constitutional  system, 
the  authority  to  exercise  that  power  is  impliedly  vested  in  the 
legislature,  as  included  in  its  general  authority  to  provide  agencies 
for  the  administration  of  government.  All  public  corporations 
in  this  country  are  therefore  creatures  of  legislation.  In  order 
that  there  may  be  such  a  corporation,  there  must  have  been  legis- 
lative action  in  such  form  and  within  such  limitations  as  may 
have  been  prescribed  by  constitution.1  But  such  action  may 
sometimes  be  proved  by  circumstantial  evidence,  and,  as  will 
hereafter  be  seen,  may,  under  certain  circumstances,  be  con- 
clusively presumed.2 


New  Boston  v.  Dunbarton,  12  N.    law,   can  any  number  of  persons 


H.  409 ;  Hope  v.  Deaderick,  8  Hum- 
phrey, (Tenn.)  1,  47  Am.  Dec.  597. 


become  a  corporation,  because  it  is 
not  within  the  power  of  individuals 


"The  capacity  of  being  a  corpo-  to  change  their  personality."    1  An- 

ration  can  only  be  conferred  by  the  drews,  American  Law,  §  370. 

state.     It   cannot   be  assumed   by  2  New     Boston     v.     Dunbarton, 

individuals.    By  no  form  of  agree-  supra;  Bow  v.  Allenstown,  34  N.  H. 

ment,  without  this  co-operation  of  351. 

19 


20  PUBLIC   CORPORATIONS.  [  §  13 

§  13.  Power  of  Congress  to  create. — The  Federal  government 
is  invested  with  the  general  powers  of  sovereignty  over  such 
enumerated  matters  as  are  expressly  placed  under  its  authority 
by  the  Federal  constitution.  Congress  has  power,  therefore,  to 
create  public  corporations  to  carry  out  the  Federal  purposes.  It 
can  create  a  governmental  bank,3  or  incorporate  a  railroad  com- 
pany, or  a  bridge  company,  for  interstate  commerce.4 

Congress  has  express  power,  under  the  United  States'  consti- 
tution, "to  exercise  exclusive  legislation  in  all  cases  whatsoever" 
over  the  District  of  Columbia ;  and  has,  therefore,  the  same  power 
to  establish  public  corporations  within  the  District  that  a  state 
legislature  has  in  a  state.5  By  virtue  of  the  Federal  sovereignty 
over  the  public  domain,  Congress  can  also  create  public  corpor- 
ations in  the  territories.6 

Congress  may  also  establish  such  incorporated  boards  or  com- 
missions as  it  deems  necessary  to  assist  in  administration  of 
Federal  government. 

§  14.  Power  of  territorial  legislatures  to  create. — The  gen- 
eral authority  of  Congress  to  provide  a  government  for  a  terri- 
tory enables  it  to  invest  such  a  government  with  the  powers  of 
sovereignty,  to  be  held  and  exercised  subordinately.  In  estab- 
lishing territorial  legislatures,  Congress  can  provide,  and  usually 
has  provided,  in  the  organic  statutes  that  their  power  "shall  ex- 
tend to  all  rightful  subjects  of  legislation."  Such  a  clause 
confers  authority  to  create  municipal  corporations,7  and  to 
confer  on  them  the  usual  competency  to  make  and  enforce  local 
ordinances.8 

3  McCullough     v.     Maryland,    4  property  is  to  be  taken.    Luxton  v. 

Wheat.   316,   411,   422 ;    Osborn   v.  North  River  Bridge  Co.,  supra. 

Bank  of  U.  S.,  9  Wheat.  738,  861.  5  It  may  incorporate  the  entire 

*  Pacific  Railroad  Removal  Cases,  District.    Stoutenburgh  v.  Hennick, 

115  U.  S.  1 ;  38  L.  Ed.  808 ;  Luxton  129  U.  S.  141 ;  Barnes  v.  District  of 

v.  North  River  Bridge  Co.,  153  U.  S.  Columbia,  91  U.  S.  540. 

525.    These  cases  involved  private  c  Deitz  v.  City  of  Central,  1  Col. 

corporations      (gwem-public)      but  332. 

doubtless  the  same  principle  admits  7  Deitz  v.  City  of  Central,  1  Col. 

of  the  creation  of  purely  public  cor-  323 ;  Riddick  v.  Amelin,  1  Mo.  5 ; 

porations  for  the  same  purpose.   In  People  v.  Butte,  4  Mont.  174 ;  Vin- 

creating  corporations  of  this  nature  cennes   University   v.    Indiana,   14 

Congress  may  confer  the  right  of  How.  (U.  S.)  268;  Burnes  v.  Atchi- 

eminent  domain,  without  the  con-  son,  2  Kansas,  454. 

sent  of  the  states  within  which  the  a  State  v.  Young,  3  Kan.  445. 


§15] 


CREATION  OF  PUBLIC   CORPORATIONS. 


21 


§  15.  Creation  by  implication. — Ordinarily  a  legislature 
need  not  use  any  prescribed  terms  or  form  in  creating  a  public 
corporation.  It  is  not  even  necessary  that  the  intention  to 
incorporate  be  positively  expressed  in  words.  Where  a  legisla- 
ture confers  or  imposes  upon  a  certain  community  or  body  of 
persons,  by  a  collective  name,  powers  or  liabilities  of  such  a 
character  that  they  can  be  held  or  sustained  only  in  a  corporate 
capacity,  it  will  be  deemed  to  have  created  a  corporation ;  at  least 
in  so  far  as  may  be  necessary  to  give  effect  to  the  purposes  of  the 
enactment.9  But  it  is  only  in  clear  cases  of  intent,  or  where 
necessary  to  give  effect  to  rights  and  remedies  or  to  permit  a 
grant  to  be  enjoyed,  that  corporate  powers  will  be  implied.10 

§16.    Invalid  organization;  de  facto  corporations. — If,  in 


9  Russell  v.  Men  of  Devon,  2  T. 
R.  672 ;  Conservators  of  River  Tone 
v.  Ash,  10  Barnwell  &  C.  349 ;  Over- 
seers of  the  Poor,  etc.  v.  Sears,  22 
Pick  122;  Beiiton  v.  Jackson,  2 
Johnson's  Ch.  325 ;  No.  Hempstead 
v.  Hempstead,  2  Wend.  109 ;  Inhab- 
itants v.  Wood,  13  Mass.  193 ;  Dean 
v.  Davis,  51  Cal.  406 ;  "Whenever  a 
duty  is  imposed,  all  the  power 
necessary  for  its  proper  perform- 
ance is  given,  if  not  expressly,  then 
by  inevitable  implication."  Bessey 
v.  Unity,  65  Me.  342;  Chicago,  Tr. 
v.  Chicago,  207  111.  37 ;  Hunneman 
v.  Fire  District,  37  Vt.  40.  In  Steb- 
bins  v.  Jennings,  10  Pick.  172,  at 
188,  Shaw,  C.  J.  said:  "It  is  a  prin- 
ciple of  law  which  has  often  been 
acted  upon,  that  where  rights,  priv- 
ileges and  powers  are  granted  by 
law  to  a  body  of  persons,  by  a  col- 
lective name,  and  there  is  no  mode 
by  which  such  rights  can  be  en- 
joyed, or  powers  exercised,  with- 
out acting  in  a  corporate  capacity, 
such  bodies  are  deemed  by  neces- 
sary implication,  to  be  so  far  corpo- 
rations, as  to  enable  them  to  enjoy 
and  exercise  the  rights  and  powers 
thus  granted.  So  when  a  duty  or 
obligation  is  imposed;  for  where 


the  law  gives  a  remedy  against  an 
aggregate  body,  it  gives  a  right  of 
action,  and  to  that  extent  consti- 
tutes them  a  corporation  by  impli- 
cation." Blair  v.  West  Point  Pre- 
cinct, 2  McCrary  (U.  S.  Ct.  Ct.)  459. 

In  Jordan  v.  Cass  County,  3  Dil- 
lon, 185,  at  189,  the  court  said: 
"Undoubtedly  the  legislature  de- 
signed that  there  should  be  a  rem- 
edy upon  these  bonds,  and  if  it 
were  consistent  with  the  legislative 
intent,  the  court  would  be  justified 
in  holding,  if  necessary  to  afford  an 
effectual  remedy,  that  the  township 
was  created  by  implication,  as  to 
this  particular  matter,  a  body  cor- 
porate, and,  as  such,  liable  to  be 
sued." 

10  Stebbins  v.  Jennings,  supra; 
Blair  v.  West  Point  Precinct,  supra; 
"But  when  the  corporation  arises 
by  inference,  in  order  to  support  a 
contract,  which,  as  a  class,  they  are 
directed  by  statute  to  enter  into, 
they  constitute  a  corporation  solely 
for  that  single  purpose ;  and  if  the 
contract  is  not  within  the  statute, 
they  do  not  contract  as  a  corpora- 
tion ;"  Justices  of  Cumberland  v. 
Armstrong,  14  N.  C.  (3  Dev.)  284. 


22  PUBLIC  CORPORATIONS.  [§17 

proceedings  for  the  formation  of  a  public  corporation,  there  has 
been  a  failure  to  conform  to  some  requirement  of  the  incorporat- 
ing law,  principles  are  applied  similar  to  those  applied  in  cases 
of  defective  private  corporations.  Where  the  provision  is  in- 
tended by  the  legislature  to  be  merely  directory,  the  neglect  to 
observe  it,  though  an  irregularity,  does  not  invalidate  the  organi- 
zation.11 If,  on  the  other  hand,  the  requirement  be  intended  to 
be  mandatory,  a  failure  to  perform  it  renders  the  incorporation 
invalid ;  the  body  does  not  become  a  corporation  de  jure  and  may 
be  ousted  of  its  claim  to  corporate  powers  in  quo  warranto  pro- 
ceedings brought  on  behalf  of  the  public.12  The  doctrines  regard- 
ing de  facto  existence,  however,  bar  all  parties  from  setting  up  the 
defect  collaterally.  The  rule  is  that  where  there  is  a  law  in  force 
which  authorizes  the  corporation  to  exist  de  jure,  and  an  attempt 
has  been  made  in  good  faith  to  organize  under  that  law,  which 
attempt  has  resulted  in  a  formation  substantially  as  prescribed 
therein,  the  neglect  to  perform  some  minor  condition,  being  of 
interest  only  to  the  state  which  imposed  it,  cannot  be  taken  ad- 
vantage of  collaterally  in  ordinary  suits  by  or  against  the  body 
as  a  corporation.  The  rule  is  founded  partly  on  public  policy, 
partly  on  the  theory  that  so  long  as  the  state  does  not  interfere 
its  acquiescence  renders  the  defect  unobjectionable.13 

Some  courts  have  decided  that  a  corporation  organized  under 
an  unconstitutional  law  is  to  be  deemed  a  corporation  de  facto 
until  the  unconstitutionality  has  been  judicially  determined.14 

§17.  Presumption  of  creation;  prescription. — Under  the 
rules  of  evidence  applicable  to  corporations  in  general,  it  is 
sufficient  prima  facie  secondary  evidence  of  existence  to  prove  a 
charter  or  law  authorizing  incorporation,  and  a  user  under  it ; 15 

11  Endlich,       Interpretation  of  N.  W.  120,  49  L.  R.  A.  483 ;  Stuart 
Statutes,  §431.  v.  School  Dist,  30  Mich.  69.     See 

12  State  v.  Tracy,  48  Minn.  497,  §§  186,   187,   infra   "De  facto   Offi- 
51  N.  W.  613,  and  cases  cited.  The  cers." 

action  should  be  against  the  alleged  1*  Speer  v.  Board,  88  Fed.  749,  32 

corporation,  by  name,  not  against  C.  C.  A.  101;  Donough  v.  Dewey, 

the  individuals  who  have  usurped  82  Mich.  309,  46  N.  W.  782,  doubted 

the  franchise.    People  v.  Clark,  70  in  Thompson  v.  Couch,  144  Mich. 

N.  Y.  518.  671 ;  Attorney-General  v.  Dover,  62 

is  Methodist   Ch.    v.    Pickett,   19  N.  J.  L.  138,  41  Atl.  98;  Lang  v. 

N.  T.  482 ;  Johnson  v.  Okerstrom,  70  Bayonne,  74  N.  J.  L.  455,  68  Atl. 

Minn.  303,  73  N.  W.  147 ;  Cozzens  v.  90 ;  Smith  v.  Sheely,  12  Wall.  35. 

Chicago,  etc.  Co.  166  111.  213 ;  Gil-  ™  Methodist  Ch.  v.  Pickett,  19  N. 

key  v.  Town  of  How,  105  Wis.  41,  81  Y.  482. 


§  18]  CREATION  OP  PUBLIC   CORPORATIONS.  23 

or  to  prove  a  long  established  organization  and  reputation  as  a 
legitimate  corporation.16  In  such  cases  the  usual  presumption 
of  regularity  and  legality  arises.17 

Where  the  issue  of  corporate  existence  is  raised  collaterally, 
and  the  evidence  shows  a  de  facto  existence,  the  presumption  is 
irrebuttable  under  principles  of  the  last  section.  In  quo  warranto 
or  other  proceedings  where  validity  is  directly  in  issue,  a  de  jure 
existence  must  usually  be  affirmatively  shown.  But  in  some  de- 
cisions it  has  been  held  that  lapse  of  time  will  render  the  pre- 
sumption applicable  to  sustain  the  corporation,  prima  facie,  even 
as  against  the  state  in  such  proceedings.18  Probably  as  a  general 
rule,  resting  on  the  historical  nature  of  a  municipal  charter  as  a 
grant  of  franchises,  the  principle  of  prescriptive  rights  will,  after 
a  period  of  twenty  years,  render  the  presumption  of  legal  crea- 
tion conclusive,  even  as  against  the  state.19 

Upon  presumptive  proof  of  a  public  corporation,  the  body  will 
be  taken  to  be  invested  with  the  powers  usually  bestowed  upon 
corporations  of  the  kind  concerned.20 

§  18.  Creation  by  recognition. — A  body  which  is  acting  as  a 
public  corporation,  under  a  claim  of  legal  authority,  but  without 
in  fact  having  been  validly  created,  may  be  made  a  rightful  cor- 
poration by  legislative  recognition.  If  the  formation  and  pur- 
pose of  the  organization  are  such  as  the  legislature  might  con- 
stitutionally have  authorized,  a  statute  which  expressly  or  im- 
pliedly  recognizes  it  as  being  what  it  claims  to  be,  confirms  its 
pretensions  and  renders  it  a  valid  corporation.21  Thus,  a  statute 

is  Stockbridge  v.  W.  Stockbridge,  proof  as  the  nature  of  the  case  will 

12  Mass.  400 ;  Prentiss  v.  Davis,  S3  permit."    People   v.    Pike,   197   111. 

Me.  364 ;  State  v.  Williams,  27  Vt.  449 ;  State  v.  Harris,  102  Minn.  340, 

755;  Barnes  v.  Barnes,  6  Vt.  388;  113  N.  W.  887;   State  v.  Leather- 

Dillingham  v.  Snow,  5  Mass.  547.  man,  38  Ark.  81. 

IT  Bank  of  U.  S.  v.  Danbridge,  12  i»  Bow  v.  Allenstown,  34  N.  H. 

Wheat.  64.  351 ;  Roby  v.  Sedgwick,  35  Barb. 

is  (Four  years,  [dicta])  Jameson  319;  People  v.  Pike,  supra. 

v.  People,  16  111.  257,  63  Am.  Dec.  20  Roby  v.  Sedgwick,  supra. 

304.    "After  a  lapse  of  more  than  21  Society  v.  Paulet,  4  Peters  (U. 

twenty  years,  during  which  the  ter-  S.)  480;  People  v.  Farnum,  35  111. 

ritory  has  exercised  all  the  func-  562.     The   community   must   have 

tions   of   a    municipal   government  been,  at  the  time  of  the  enactment 

with     public     acquiescence,     strict  claiming  to  be,  and  acting  as,  the 

proof  of  legal  organization  will  not  corporation  which  it  is  contended 

be  required  in  quo  warranto,  and  has  been  established.    See  Railway 

the  defendant  need  make  only  such  Co.  v.  Jordan,  113  Ga.  687. 


24  PUBLIC   CORPORATIONS.  [  §  19 

which  annexes  territory  to  ' '  the  town  of  Allenstown, ' '  a  supposed 
town,  makes  the  community  a  valid  town  corporation ; 22  and  a 
statute  which  authorizes  a  town  to  subscribe  to  railroad  stock 
and  issue  bonds  as  a  corporation,  precludes  subsequent  inquiry 
into  the  validity  of  the  town's  organization,  even  in  proceedings 
on  quo  warranto.23  Apparently  the  recognition  relates  back,  and 
validates  corporate  acts  from  the  beginning.24 

§  19.  Name  and  boundaries  of  territory. — The  incorporation 
of  the  inhabitants  of  a  locality,  to  be  operative,  must  fix  the  terri- 
torial boundaries.25 

Ordinarily  the  statute  provides  a  name  for  the  corporation; 
but  under  general  incorporation  laws  the  corporation  is  usually 
permitted  to  select  the  name  itself.26 

§  20.  Authority  of  a  legislature  to  invest  with  governmental 
power. — The  power  to  legislate  for  all  parts  of  the  state  is 
vested  in  the  legislature,  and  as  a  general  rule  that  body  has  no 
authority  to  delegate  its  trust  to  others.  An  important  exception 
to  this  rule  is  that  the  legislature  may  delegate  legislative  power, 
in  any  of  its  forms,  to  self-governing  local  communities  for  local 
purposes.  The  principle  which  permits  this  has  come  to  us 
through  English  and  Colonial  institutions,  and  is  impliedly  con- 
firmed by  our  constitutions.  When  the  constitutions  were 
adopted,  the  power  to  grant  privileges  of  local  self-government 
had  been  exercised  by  the  crowns  of  Europe  from  the  earliest 
times;  municipalities  had  long  existed  in  the  American  colonies 
under  charters  from  proprietaries  and  companies  who  held 
colonial  domains,  and  towns  had  become  established  by  custom, 
usage  and  statutory  recognition.  Colonial  municipalities  had 
always  been  invested  with  authority  to  pass  local  ordinances  or 
by-laws,  and  had  often  been  granted  special  authority  to  tax  their 


22  Bow  v.  Allenstown.  34  N.  H.  by  recognition,  establish  the  county 
351.   But  a  statute  referring  to  an  generally.     Smith  v.  Anderson,  33 
incorporated  town  as  a  city,  and  Minn.  25. 

amending  its  charter,  was  held  not  24  Basshor  v.  Dressel,  34  Md.  503. 

to  make  the  town  a  city.   Railway  25  Cutting  v.    Stone,   7  Vt.   471 ; 

Co.  v.  Jordan,  supra.  Galesburg    v.    Hawkinson,    75   111. 

23  Jameson  v.  People,  16  111.  257.  152,  at  156. 

But  a  statute  merely  validating  the  26  Johnson    v.    Indianapolis,    16 

past  acts  of  the  officers  of  an  in-  Ind.  227. 
valid  county  organization  does  not, 


§21] 


CREATION  OP  PUBLIC  CORPORATIONS. 


25 


inhabitants.  Our  constitutions  were  adopted  with  these  institu- 
tions in  view,  and  in  contemplation  of  their  continuance.27 

§  21.  Compulsory  incorporation. — In  the  absence  of  constitu- 
tional requirement,  the  consent  of  the  people  of  a  locality  is  not 
requisite  as  a  condition  to  their  incorporation  as  a  public  cor- 
poration ;  for  no  contract  relation  is  imposed  by  the  charter.  The 
legislature  may,  however,  and  usually  does,  provide  that  incor- 
poration shall  be  dependent  on  their  acceptance.  Such  a  pro- 
vision is  not  an  unconstitutional  delegation  of  legislative  discre- 
tion to  the  local  voters,  for  municipal  charters  have  retained  much 
of  their  original  nature  as  grants  of  privileges.28 

If  a  charter  is  made  to  take  effect  immediately,  the  corporation 
springs  into  existence  even  before  any  organization  by  the  in- 
habitants; and  every  resident  citizen  becomes  subject  to  the 
political  requirements  of  membership  regardless  of  his  own  will.29 


27  "It  has  already  been  seen  that 
the  legislature  cannot  delegate  the 
power  to  make  laws;  but  funda- 
mental as  this  maxim  is,  it  is  so 
qualified  by  the  customs  of  our  race, 
and  by  other  maxims  which  regard 
local  government,  that  the  right  of 
the  legislature,  in  the  entire  ab- 
sence of  authorization  or  prohibi- 
tion, to  create  towns  and  other  in- 
ferior municipal  organizations,  and 
to  confer  upon  them  the  powers  of 
local  government,  and  especially  of 
local  taxation  and  police  regula- 
tion usual  with  such  corporations, 
would  always  pass  unchallenged. 
The  legislature  in  these  cases  is 
not  regarded  as  delegating  its  au- 
thority, because  the  regulation  of 
such  local  affairs  as  are  commonly 
left  to  local  boards  and  officers  is 
not  understood  to  belong  properly 
to  the  State;  and  when  it  interferes, 
as  sometimes  it  must,  to  restrain 
and  control  the  local  action,  there 
should  be  reasons  of  State  policy  or 
dangers  of  local  abuse  to  warrant 
the  interposition."  Cooley's  Const. 
Lim.  p.  264.  See  People  v.  Draper, 
15  N.  Y.  532 ;  Cheaney  v.  Hooser,  9 
B.  Munroe,  338 ;  State  v.  Noyes,  30 


N.  H.  279.     1  Andrews,  American 
Law,  §402. 

28  Paterson  v.  Society  for  Useful 
Manufactures,  24  N.  J.  Law,  385; 
State  v.   Govan,  70  Miss.  535,  12 
So.  959;  Cooley,  Const.  Lim.   (7th 
ed. )  166, 167,  and  many  cases  cited. 

29  Bell,  J.,  in  Berlin  v.  Gorham, 
34  N.  H.  266,  said :    "The  acts  of 
incorporation  are  imperative  upon 
all  who  come  within  their  scope. 
Nothing  depends  upon  consent,  un- 
less the  act  is  expressly  made  con- 
ditional.   No  man  who  lives  upon 
the  incorporated  district  can  with- 
draw from  the  corporation,  unless 
by  a  removal  from  the  town ;  and 
by  the  mere  passage  of  the  law  the 
town  is  completely  constituted,  en- 
titled to  the  rights  and  subjected 
to   the  duties  and   burdens   of   a 
town,  whether  the  inhabitants  are 
pleased  or  displeased.    The  Legis- 
lature has  entire  control  over  mu- 
nicipal    corporations,     to     create, 
change,  or  destroy  them  at  pleasure, 
and  they  are  absolutely  created  by 
the  act  of  incorporation,   without 
the  acceptance  of  the  people,  or  any 
act  on  their  part,  unless  otherwise 
provided  by  the  act  itself." 


26 


PUBLIC   CORPORATIONS. 


[§22 


If  it  be  made  to  take  effect  upon  acceptance  by  a  majority  vote 
of  the  local  electorate,  it  binds  upon  such  acceptance  those  who 
opposed  as  well  as  those  who  favored  adoption.30  Inhabitants 
of  adjacent  territory  may  become  incorporated  into  a  munici- 
pality by  simple  annexation  of  the  territory.31  Compulsory  in- 
corporation of  municipalities  is  now  impossible  under  express 
provisions  of  many  state  constitutions.32  A  provision  which  for- 
bids setting  up  a  city  government  in  a  town  except  with  the  con- 
sent of  a  majority  of  the  inhabitants,  does  not  apply  to  the  an- 
nexation of  the  territory  of  the  town  to  a  city.33 

§22.  Compulsory  changes  in  charters. — The  same  ground 
which  admits  of  compulsory  incorporation  of  public  corporations, 
namely  the  nature  of  the  charter  or  statute  as  a  mere  measure  of 
constructive  government  containing  no  element  of  contract,  sup- 
ports amendment  of  the  act  of  incorporation,  and  even  the  repeal 
thereof,  without  the  consent  of  the  inhabitants.34 


so  Taylor  v.  Newberne,  2  Jones's 
Eq.  141,  64  Am.  Dec.  566;  Clarke 
v.  Rogers,  81  Ky.  43. 

si  Blanchard  v.  Bissell,  11  Oh.  St. 
96;  State  v.  Cincinnati,  52  Oh.  St. 
419,  27  L.  R.  A.  737;  Laramie  Co. 
v.  Albany  Co.,  92  U.  S.  307. 

32  infra,  §23  and  Chapter  XX. 
By  Mass.  Constn,  Amendments, 
Art.  II,  the  legislature  can  estab- 
lish a  city  government  only  in  a 
town  which  has  12,000  inhabitants 
or  more,  and  then  only  upon  accept- 
ance by  a  majority  of  the  voters 
thereof.  See,  also,  Penn.  Constn., 
Art.  15,  §  1 ;  Texas,  Art.  11,  §§  4,  5, 
W.  Va.  Art.  6,  §39. 

as  Chandler  v.  Boston,  112  Mass. 
200. 

s*  "Institutions  of  the  kind, 
whether  called  counties  or  towns, 
are  the  auxiliaries  of  the  State  in 
the  important  business  of  municipal 
rule,  and  cannot  have  the  least  pre- 
tension to  sustain  their  privileges 
or  their  existence  upon  any  thing 
like  a  contract  between  them  and 
the  legislature  of  the  State,  because 
there  is  not  and  cannot  be  any  reci- 


procity of  stipulation,  and  their  ob- 
jects and  duties  are  utterly  in- 
compatible with  every  thing  of  the 
nature  of  compact.  *  *  * 

Such  corporations  are  the  mere 
creatures  of  the  legislative  will; 
and,  inasmuch  as  all  their  powers 
are  derived  from  that  source,  it 
follows  that  those  powers  may  be 
enlarged,  modified,  or  diminished 
at  any  time,  without  their  consent, 
or  even  without  notice.  They  are 
but  subdivisions  of  the  State,  de- 
riving even  their  existence  from 
the  legislature."  Clifford,  J.,  in 
Laramie  Co.  v.  Albany  Co.,  92  U. 
S.  307. 

"A  corporation  being  the  creature 
of  the  legislature,  it  necessarily 
follows,  that  unless  its  creation  in- 
volves a  contract  and  vested  rights 
on  the  part  of  the  corporation,  it 
is  at  all  times  subject  to  legislative 
control,  and  may  have  its  privileges 
and  immunities  enlarged  or  dimin- 
ished from  time  to  time,  as  the  pub- 
lic good  may  require,  and  at  the 
discretion  of  the  legislature,  and 
this  is  particularly  the  case  with 


§23] 


CREATION  OF  PUBLIC   CORPORATIONS. 


27 


§  23.  Form  of  legislation. — The  older  method  of  incorpora- 
tion, by  special  charter,  is  still  permissible  in  Alabama,  Colorado, 
Connecticut,  Delaware,  Florida,  Georgia,  Idaho,  Louisiana, 
Maine,  Massachusetts,  Maryland,  Nevada,  New  Hampshire,  New 
York,  North  Carolina,  Oregon,  Rhode  Island,  Tennessee,  Texas, 
Vermont  and  Wisconsin,35  in  some  with  special  constitutional 
restrictions.36  Except  where  special  restrictions  have  been 
adopted,  in  one  or  two  states,  the  legislature  of  any  state  in  which 
special  charters  are  permitted  may  in  its  discretion  provide  gen- 
eral laws  instead.37 

In  many  states,  the  inconvenience  of  having  different  munici- 
palities with  varying  powers,  and  the  complaint  that  special  legis- 
lative action  concerning  particular  cities  is  often  induced  by 
political  considerations,  have  led  to  the  adoption  of  constitutional 
provisions  which  forbid  the  creation  or  modification  of  municipal 
corporations  by  special  act,  and  require  that  the  legislature  pro- 
vide for  their  creation  and  government  by  general  law.  Such 


municipal  corporations  created  for 
the  ordering  and  governing  of 
towns  and  cities.  The  delegation 
of  higher  and  greater  powers  may 
be  required  at  one  time  than  an- 
other, and  they  may  therefore,  very 
properly,  be  expanded  or  contracted 
at  pleasure,  according  to  the  neces- 
sity of  the  case."  Turley,  J..  in 
Nichol  v.  Mayor  &  Aldermen  of 
Nashville,  9  Humphrey  (Tenn.)  253, 
at  263.  See  Hunter  v.  Pittsburg, 
207  U.  S.  161,  178. 

SB  Ala.  Const.  (1875) ,  art.  14,  §  1 ; 
Colo.  Const.  (1S76),  art.  15,  §2; 
Ga.  Const.  (1877),  art.  3,  §  6;  Idaho 
Const.  (1889),  art.  11,  §2;  Maine 
Const.  (1876),  art  4,  §14;  Md. 
Const.  (1S76),  art.  3,  §48;  Nev. 
Const.  (1864),  art.  8,  §1;  New 
York  Const.  (1900),  art.  8,  §1;  N. 
C.  Const.  (1868),  art.  8,  §1;  Oreg. 
Const.  (1857),  art.  11,  §2;  Wis. 
Const.  (1848) ,  art.  11,  §§  1,  3 ;  Tenn. 
Const,  art  11,  §  8,  forbidding  spe- 
cial acts  of  incorporation,  has  been 


construed  in  State  v.  Wilson,  12 
Lea  246,  as  not  including  municipal 
corporations. 

se  N.  Y.  Const,  art  3,  §18,  for- 
bids special  or  local  bills  incorpo- 
rating villages.  Tex.  Const.  (1876), 
art.  11,  §§4,  5,  provides  that  cities 
of  10,000  or  less  shall  be  created 
only  by  general  law,  cities  of  more 
than  10,000  by  either  special  or 
general  law.  West  Virginia  does  not 
permit  special  acts  of  incorpora- 
tion for  cities  of  less  than  2,000. 
W.  Va.  (1872),  art.  6,  §  39. 

37  Franklin  Bridge  Co.  v.  Wood, 
14  Ga.  80.  But  see  as  to  effect  of 
provision  in  Massachusetts  Consti- 
tution (creation  of  cities  by  gener- 
al law  not  permissible),  Larcom  v. 
Olin,  160  Mass.  102.  Rhode  Island 
Amendments,  art.  IX,  provides  that 
no  corporation  with  the  right  of 
eminent  domain  or  a  franchise  in 
streets  of  towns  shall  be  created 
except  by  special  act 


28 


PUBLIC   CORPORATIONS. 


[§23 


provisions  are  in  force  in  Arkansas,  California,  Illinois,  Indiana, 
Iowa,  Kansas,  Michigan,  Minnesota,  Missouri,  Mississippi,  Ne- 
braska, New  Jersey,  North  Dakota,  Ohio,  Pennsylvania,  South 
Carolina,  South  Dakota,  Utah,  Virginia,  Washington,  and  Wyom- 
ing.38 The  common  method  adopted  in  enacting  general  statutes 
for  this  purpose  is  to  classify  cities  according  to  population  and 
provide  a  code  of  laws  for  each  class. 

The  constitutions  of  some  states  expressly  require  that  the  legis- 
lature shall  provide  a  "uniform  system"  of  county,  town,  and 
municipal  government.39  But  in  those  states  in  which  special 
charters  are  still  permitted,  it  is  necessary  to  examine  all  the  acts 
applicable  to  the  particular  city  concerned ;  and  in  many  of  the 
older  states,  the  various  cities  differ  widely  in  their  government, 
powers,  and  methods  of  procedure.  In  California,  Missouri,  Min- 
nesota, Oklahoma,  and  Oregon,  by  constitutional  provisions,  and 
in  Colorado,  Michigan,  and  Washington,  by  general  laws  under 
express  constitutional  authorization,  municipalities  are  per- 
mitted to  frame  and  amend,  by  taking  specified  proceedings,  their 
own  charters.40 


3  s  Ark.  Const.  (1874),  art  12, 
§§2,  3;  Cal.  Const.  (1896  Amend.), 
art.  11,  §6;  111.  Const  (1870),  art 
11,  §  1;  Ind.  Const.  (1851),  art  11, 
§212;  Iowa  Const  (1857),  art  8, 
§1;  Kan.  Const  (1859),  art  12, 
§§1,  5;  Mich.  Const.  (1909),  art.  8, 
§§20,  21,  amending  (1850),  art  15, 
§1;  Minn.  Const  (1892),  art  4, 
§33,  amending  (1857),  art.  10,  §2; 
Miss.  Const  (1890),  art  4,  §§87, 
88;  Mo.  Const  (1875),  art  4,  §53, 
art  12,  §2,  amending  (1865),  art 
8,  §4;  Neb.  Const  (1885),  art  lib, 
§  1;  N.  J.  Const  (1844),  art  4,  §  7, 
par.  11;  N.  D.  Const  (1889),  art  2, 
§69,  art.  4,  §130;  Ohio  Const 
(1851),  art  13,  §§  1,  6;  Penn.  Const 
(1874),  art  3,  §7;  S.  C.  Const 
(1895),  art  3,  §34;  S.  D.  Const 
(1899),  art  10,  §1;  Utah  Const 
(1895),  art  11,  §5;  Va.  Const 
(1902),  art  7,  §117;  art  4,  §65; 
Wash.  Const  (1899),  art  2,  §28; 
W.  Va.  Const  (1872),  art  11,  §1; 


Wyo.  Const  (1899),  art.  13,  §  1. 
By  the  "Harrison  Act,"  1  Supp.  U. 
S.  Rev.  St.,  p.  503  (1886),  territor- 
ial legislatures  are  forbidden  to 
grant  private  charters  or  special 
privileges. 

39  Cal.  Const,  art  11,  §4;  Fla. 
Const,  art  3,  §  24 ;  Ga.  Const,  art 
11,  §§3,  1;  Idaho  Const  (1896), 
art  12,  §  1;  Mo.  Const  (1888),  art 
9,  §  7 ;  Nev.  Const.,  art.  4,  §  25 ;  Ky. 
Const  (1894),  §156;  Okla.  Const, 
art  18,  §1;  S.  D.  Const,  art.  10, 
§  1 ;  Utah  Const.,  art  11,  §  5 ;  Wis. 
Const,  art  4,  §  23. 

« Cal.  Const  (Am.  Ed.  1902), 
art  11,  §  8.  provides  that  a  city  of 
more  than  3,500  inhabitants  may 
frame  its  own  charter  in  the  follow- 
ing manner :  A  board  of  15  freehold- 
ers is  elected  by  the  qualified  vo- 
ters, the  board  to  prepare  within 
ninety  days  a  charter,  which  must 
be  signed  in  duplicate  by  a  ma- 
jority of  the  board,  and  copies  of 


§24] 


CREATION  OF  PUBLIC   CORPORATIONS. 


29 


§24.  Form  of  proceedings  under  general  laws. — General 
laws  for  the  incorporation  of  villages,  towns  and  cities,  usually 
designate,  as  proceedings  for  incorporation,  four  principal  steps : 
(1)  A  petition  to  some  official  tribunal,  signed  by  a  prescribed 
number  of  voters  or  other  persons,  and  containing  specified  allega- 
tions; (2)  a  general  notice  of  the  petition  and  of  the  time  set  for 
a  hearing  or  an  election  (as  the  case  may  be)  ;  (3)  either  a  general 
hearing  before  such  tribunal,  or  a  local  vote  in  pursuance  of  its 
order,  on  the  question  whether  incorporation  should  occur;  (4)  a 
decision  by  such  tribunal,  or  a  declaration  of  the  result  of  the 
election,  and  the  making  of  records  or  filing  of  a  certificate  as 
may  be  specified.41 

It  is  to  be  noticed,  however,  that  if  the  statute  confides  to  a  non- 
representative  tribunal  a  general  political  discretion  on  the  ques- 
tion of  incorporation,  as  distinguished  from  an  authority  to  deter- 
mine facts,  it  contains  an  unconstitutional  delegation  of  legis- 
tive  power;  and  if  it  confers  such  discretion  upon  the  courts,  it 
contains  an  unconstitutional  violation  of  the  separation  of 
powers.42 


which  must  be  returned  to  the 
chief  executive  of  the  city  and  the 
recorder  of  the  county.  The  pro- 
posed charter  must  then  be  pub- 
lished in  two  newspapers  for  at 
least  twenty  days,  and  afterward 
submitted  to  the  electors  for  rati- 
fication and  to  the  legislature  for 
approval.  Mo.  Const.  (1875),  art. 
9,  §16,  requires  100,000  inhabi- 
tants, the  election  of  a  board  of  13 
freeholders,  and  adoption  by  a  4-7 
vote  of  the  electors.  Minn.  Const. 
(Amend.  1898),  art.  4,  §36,  re- 
quires 15  freeholders  and  a  4-7 
vote.  Oreg.  Const.  (1906  Amend.), 
art.  11,  §  2,  recognizes  an  ex- 
clusive right  in  a  municipality  to 
frame  its  own  charter,  subject  to 
the  Constitution  and  the  criminal 
laws.  Okla.  Const.  (1908),  art.  18, 
§3a,  requires  2,000  inhabitants. 
Colo.  (1901),  p.  46,  allows  cities  of 


the  first  class  to  amend  their  own 
charters.  Wash.  Const.,  art.  11, 
§  10,  requires  20,000  inhabitants. 
Mich.  Const.  (1909),  art.  8,  §§20, 
21.  See  "The  People  and  their 
City  Charters,"  in  Oberholzer's  The 
Referendum  in  America,  ch.  IV,  and 
"Home  Rule  for  our  American 
Cities,"  in  Annals  of  Am.  Acad.  of 
Pol.  and  Soc.  Science  for  May, 
1893,  vol.  Ill,  p.  736. 

41  E.  g.    (Incorporation  of  a  vil- 
lage ;  hearing  and  decision  by  coun- 
ty   board    of    supervisors)     Mich. 
Comp.  Laws    (1897),  ch.  87;    (In- 
corporation of  city  in  place  of  vil- 
lage ;  petition  to  village  council  and 
order  for  election)   Id.  ch.  88. 

42  Territory  v.  Stewart,  1  Wash. 
98,  8  L.  R.  A.  106;  In  re  No.  Mil- 
waukee, 93  Wis.  616 ;  67  N.  W.  1033 ; 
33  L.  R.  A.  638.    Contrast  State  v. 
Stout,  58  N.  J.  L.  598,  33  Atl.  858, 


CHAPTER  III. 


GENERAL  SCOPE  OF  POWER. 


§  25.  The  general  principle. 

26.  Comments  upon  the  rule. 

27.  Rules  of  construction. 

28.  Usage. 

29.  Manner  of  granting  powers. 

30.  General-welfare  clause. 


§  31.  Exercise     of     power     beyond 
boundaries. 

32.  Statutory  requirements  as  to 

form. 

33.  Constitutional  limitations  ap- 

piy. 


§25.  The  general  principle. — The  legislature  in  creating 
public  corporations  confers  upon  them  such  powers  as  it  deems 
most  conducive  to  the  public  good.  The  powers  of  counties  and 
townships  are  generally  uniform,  and  are  determined  by  gen- 
eral laws.  Those  of  municipal  corporations  are  often  conferred 
by  special  charters,  which  results  in  great  lack  of  uniformity. 
The  powers  of  corporations,  stated  in  general  language,  are  such 
and  such  only  as  the  legislature  has  conferred  upon  them.  Those 
of  municipal  corporations,  as  classified  by  Judge  Dillon,  and 
approved  by  many  courts,  are : 

1.  Those  granted  in  express  words. 

2.  Those  necessarily  or  fairly  implied  in  or  incident  to  the 
powers  expressly  granted. 

3.  Those  essential  to  the  declared  objects  and  purposes  of  the 
corporation,  not  simply  convenient,  but  indispensable.1 


i  Dillon,  Municipal  Corporations 
(4th  Ed.),  §89;  Detroit  Citizens' 
St.  Ry.  Co.  v.  Detroit,  110  Mich. 
384,  68  N.  W.  304,  35  L.  R.  A. 
859;  St.  Louis  v.  Bell  Tel.  Co.,  96 
Mo.  623,  10  S.  W.  197,  2  L.  R.  A. 
278,  9  Am.  St.  370;  Huesing  v. 
Rock  Island,  128  111.  465,  21  N. 
E.  558,  15  Am.  St.  129;  Village 
of  Carthage  v.  Frederick,  122  N.  Y. 
268,  25  N.  E.  480,  10  L.  R.  A.  178, 
19  Am.  St.  490;  Smith  v.  New- 
bern,  70  N.  C.  14,  16  Am.  Rep.  766 ; 
Bentley  v.  Bd.  Co.  Com.,  25  Minn. 
259 ;  Clark  v.  Des  Moines,  19  Iowa, 
199,  87  Am.  Dec.  423;  McAllen  v. 

30 


Hamblin,  129  Iowa  329,  105  N.  W. 
593;  Zottman  v.  San  Francisco,  20 
Cal.  96,  81  Am.  Dec.  96;  Taylor  v. 
Bay  City  St.  R.  Co.,  80  Mich.  77. 
"The  powers  expressly  granted  to 
a  municipal  corporation  carry  with 
them  such  other  powers  as  are  nec- 
essarily implied  in  or  incident  to 
such  grants,  and  it  also  possesses 
all  powers  which  are  indispensable 
to  the  attainment  and  maintenance 
of  its  declared  objects  and  pur- 
poses. Municipal  corporations  are 
more  strictly  limited  in  these  re- 
spects than  private  corporations." 
1  Andrews,  American  Law,  §  402. 


§  26]  GENERAL  SCOPE  OF  POWER.  31 

The  express  powers  are  found  in  the  words  of  the  charter  or 
general  statute  of  incorporation.  The  implied  powers  arise  out 
of  the  language  of  the  grant  of  express  power.  The  necessary 
powers  are  such  as  are  essential  in  order  to  effect  the  objects 
for  which  the  corporation  was  created.2  But  it  must  be  remem- 
bered that  a  municipal  corporation  is  a  body  with  special  and 
limited  jurisdiction,  and  that  its  powers  can  neither  be  extended 
nor  diminished  by  its  own  acts.3  Thus,  where  a  charter  author- 
ized a  municipal  board  to  act  by  a  majority  vote,  a  by-law  pro- 
viding that  a  two-thirds  vote  should  be  required  was  held 
invalid.4  In  a  somewhat  similar  case,  where  the  charter  was 
silent  as  to  the  number  required  to  make  a  quorum  of  the  city 
council,  the  court  held  that  the  common  law  rule  which  made  a 
majority  a  quorum  applied,  or  was  impliedly  intended  by  the 
charter,  and  that  therefore  the  council  could  not  fix  the  number 
by  ordinance  or  resolution.5  The  court  said  further  that  "in 
authorizing  the  city  council  to  settle  their  rules  of  procedure,  the 
legislature  did  not  confer  on  the  council  the  power  to  declare 
by  rule  what  number  of  their  body  should  constitute  a 
quorum  for  the  transaction  of  business.  A  mere  majority  of 
the  members  elected  being  present,  the  acts  of  the  city  council  are 
valid,  notwithstanding  the  existence  of  a  rule  adopted  by  the 
council  requiring  that  two-thirds  of  the  members  elected  shall 
be  necessary  to  constitute  a  quorum.  A  municipal  corporation 
cannot,  by  rule  made  by  itself,  either  enlarge  or  diminish  its  own 
powers." 

§26.  Comments  upon  the  rule. — The  general  principles  as 
stated  in  the  preceding  section  have  been  often  approved  by 
the  courts.  Thus  Chief  Justice  Church  said:  "In  this  country 
all  corporations,  whether  public  or  private,  derive  their  powers 
from  legislative  grant,  and  can  do  no  act  for  which  authority 
is  not  expressly  given  or  may  not  be  reasonably  inferred.  But 
if  we  were  to  say  that  they  can  do  nothing  for  which  a  warrant 

2  Smith  v.  City  of  Newbern,  70  N.-  89;  City  of  St.  Paul  v.  Traeger,  25 

C.  14,   16  Am.   Rep.   766;   Bridge-  Minn.  252. 

port  v.  Railroad  Co.,  15  Conn.  475 ;  *  Short-Conrad  Co.  v.  School  Dis- 

Village  of  Carthage  v.  Frederick,  trict  of  Eau  Claire,  94  Wis.  535,  G9 

122  N.  Y.  268,  25  N.  E.  480,  19  Am.  N.  W.  Rep.  337. 

St.  Rep.  490.  c  Heiskell  v.  Mayor,  65  Md.  125, 

s  City  of  St.  Paul  v.  Laidler,  2  4  Atl.  116,  57  Am.  Rep.  308. 
Minn.  190  (Gil.  159),  72  Am,  Dec. 


32  PUBLIC   CORPORATIONS.  [§27 

could  not  be  found  in  the  language  of  their  charters,  we  would 
deny  them,  in  some  eases  the  power  of  self-preservation,  as  well 
as  many  of  the  means  necessary  to  effect  the  essential  objects  of 
their  incorporation.  And,  therefore,  it  has  long  been  an  estab- 
lished principle  of  the  law  of  corporations,  that  they  may  exercise 
all  the  powers  within  the  fair  intent  and  purpose  of  their  crea- 
tion which  are  reasonably  proper  to  give  effect  to  powers  ex- 
pressly granted.  In  doing  this  they  must  have  a  choice  of  means 
adapted  to  ends  and  are  not  to  be  confined  to  any  one  mode  of 
operation. ' ' 6  They  can  exercise  no  powers,  said  Chief  Justice 
Shaw,7  "but  those  which  are  conferred  upon  them  by  the  act 
by  which  they  are  constituted,  or  such  as  are  necessary  to  the 
exercise  of  their  corporate  powers,  the  performance  of  their  cor- 
porate duties  and  the  accomplishment  of  the  purposes  of  their 
association.  This  principle  is  fairly  derived  from  the  nature  of 
corporations,  and  the  mode  in  which  they  are  organized  and  in 
which  their  affairs  must  be  conducted." 

§27.  Rules  of  construction. — "It  is  a  well-settled  rule  of 
construction  that  in  grants  to  corporations,  whether  public  or 
private,  only  such  powers  and  rights  can  be  exercised  under  them 
as  are  clearly  comprehended  within  the  words  of  the  act  or 
derived  therefrom  by  fair  and  reasonable  implication,  regard 
being  had  to  the  object  of  the  grant.  Any  ambiguity  or  doubt 
arising  out  of  the  terms  used  by  the  legislature  must  be  resolved  in 
favor  of  the  public."  8  All  charters  and  city  laws  will,  if  possi- 

e  Bridgeport  v.  Railroad  Co.,  15  Water  Company's  Appeal,  102  Pa. 

Conn.  475.  But  where  the  manner  St.  515 ;  Leonard  v.  Canton,  35  Miss. 

in  which  power  is  to  be  executed  is  189 ;  Long  v.  Duluth,  49  Minn.  287 ; 

expressly  prescribed,  that  method  Brenham  v.  Brenham  Water  Co., 

must  be  followed.  Mayor  of  Balti-  67  Tex.  542.  With  reference  to  this 

more  v.  Porter,  18  Md.  284,  79  Am.  rule  Judge  Dillon  says:  "If  upon 

Dec.  686 ;  Zottman  v.  San  Francis-  the  whole  there  be  a  fair,  reason- 

co,  20  Cal.  96,  81  Am.  Dec.  96 ;  able,  substantial  doubt  whether  the 

Blanchard  v.  Hartwell,  131  Cal.  legislature  intended  to  confer  the 

263,  63  Pac.  349.  authority  in  question,  particularly 

i  Spaulding  v.  Lowell,  23  Pick,  if  it  refers  to  a  matter  extra-mu- 

71.  nicipal  or  unusual  in  its  nature, 

s  St.  Louis  v.  Bell  Tel.  Co.,  96  and  the  exercise  of  which  will  be 

Mo.  623,  9  Am.  St.  370;  Minturn  attended  by  taxes,  tolls,  assess- 

v.  Larue,  23  How.  435;  Thomson  v.  ments  or  burdens  upon  the  inhabi- 

Lee  Co.,  3  Wall.  327;  Thomas  v.  tants,  or  oppress  them,  or  abridge 

Richmond,  12  Wall.  349 ;  Lehigh  natural  or  common  rights,  or  divest 


28] 


GENERAL  SCOPE  OF  POWER. 


33 


ble,  be  construed  in  conformity  to  constitutional  principles  and  in 
harmony  with  general  laws.9 

Two  other  cardinal  rules  of  statutory  interpretation,  as  modi- 
fied to  apply  in  construing  the  organic  laws  of  public  corpora- 
tions, as  well  as  of  other  governmental  agencies,  should  be  espe- 
cially noticed. 

First:  An  express  specification  of  authority  regarding  a  sub- 
ject, excludes  such  broader  authority  as  might  otherwise  have 
been  deemed  to  flow  from  some  other  and  more  general  provision, 
or  be  implied  as  incidental  to  the  declared  purposes  of  the  enact- 
ment.10 

Second:  "Where  a  grant  of  authority  is  made  in  respect  to 
enumerated  subjects  or  situations  of  the  same  nature,  and  the 
words  which  enumerate  such  subjects  or  situations  are  followed 
by  words  designating  a  broader  or  more  extensive  class,  the  final 
expression  is  presumed  to  be  limited  in  meaning  to  the  class  the 
nature  of  which  is  indicated  by  the  specific  words.11 

§  28.  Usage. — In  this  country  power  cannot  be  conferred 
upon  public  corporations  by  usage,  but  usage  may  properly 
be  considered  in  aid  of  construction.12  Thus,  an  unlawful  ex- 


them  of  their  property,  the  doubt 
should  be  resolved  in  favor  of  the 
citizen  and  against  the  municipal- 
ity." Municipal  Corporations,  §  91, 
note,  citing  Ex  parte  Mayor  of 
Florence,  78  Ala.  419;  Grand  Rap- 
ids Electric  Co.  v.  Grand  Rapids 
Edison  Co.,  33  Fed.  659;  Logan  v. 
Pyne,  43  Iowa,  524,  22  Am.  Rep. 
261;  Anderson  v.  Wellington,  40 
Kan.  173,  10  Am.  St.  175,  note.  In 
Ex  parte  Garza,  28  Tex.  Ap.  381, 
19  Am.  St.  845,  it  was  said  that  all 
reasonable  intendment  in  support 
of  the  validity  of  an  ordinance 
should  be  indulged. 

»In  re  Frazee,  63  Mich.  396,  6 
Am.  St.  310;  Mayor  v.  State,  15 
Md.  376,  74  Am.  Dec.  572. 

10  State  v.  Trenton,  38  N.  J.  L. 

3 


64.  "Whether  the  expression  of 
one  thing  is  to  operate  as  the  ex- 
clusion of  another,  is  clearly  a  mere 
question  of  intention,  to  be  gath- 
ered from  the  statute  by  the  usual 
means  and  rules  of  interpretation. 
As  an  auxiliary  rule,  the  maxim 
expressio  unius,  etc.,  as  above  de- 
fined, becomes  a  most  important 
aid.  It  means  that  the  special 
mention  of  one  thing  indicates  that 
it  was  not  intended  to  be  covered 
by  a  general  provision  which  would 
otherwise  include  it."  Endlich,  In- 
terpretation of  Statutes,  §399. 

11  Butler's  Appeal,  73  Pa.  St.  448 ; 
St.  Louis  v.  Laughlin,  49  Mo.  559; 
State  v.  McGarry,  21  Wis.  496. 

i2Frazier  v.  Warfleld,  13  Md. 
279. 


34  PUBLIC   CORPORATIONS.  [§  29 

penditure  of  money  by  a  town  cannot  be  made  valid  by  usage 
however  long  continued.  "  Abuses  of  power  and  violations  of 
right  derive  no  sanction  from  time  or  custom."  13 

§  29.  Manner  of  granting  powers. — It  must  be  remembered 
that  public  corporations  are  created  by  the  state  for  the  primary 
purpose  of  aiding  in  the  work  of  government ;  and  that  it  dele- 
gates to  them  such  powers  as  are  deemed  advisable  for  that 
purpose.  Municipal  corporations  have  largely  lost  their  original 
character,  and  become,  like  counties  and  towns,  essentially  public 
agencies,  with  certain  gwcm'-private  powers  and  franchises,  how- 
ever, to  be  used  for  the  special  benefit  of  its  citizens.  It  is  imprac- 
ticable for  any  charter  to  contain  an  enumeration  of  all  the  powers 
which  it  may  be  advisable  that  such  a  corporation  should  exercise 
under  all  possible  future  conditions.  Hence,  it  has  become  cus- 
tomary to  apply  to  the  legislature  for  additional  powers  upon  the 
occurrence  of  every  new  demand.  As  a  result  there  is  no  such 
systematic  classification  of  corporate  powers  as  probably  would 
have  been  made  under  a  system  where  power  is  granted  in  gen- 
eral terms,  as  is  common  in  many  European  countries.  Thus,  in 
France,  all  municipal  power  is  derived  from  the  simple  provision 
that  "the  municipality  regulates  by  its  deliberations  the  affairs 
of  the  commonwealth. " J  4 

An  examination  of  the  laws  of  the  several  states  and  of  the 
special  charters  of  municipal  corporations  will  show  that  many 
powers  are  common  to  all.  Municipal  corporations  are  in  many 
states  classified  by  general  laws  according  to  population,  and  a 
grant  of  enumerated  powers  is  then  made  by  such  laws  to  each 
class.  Cities  of  the  highest  class  naturally  require  and  ordinarily 
possess  many  powers  and  privileges  not  granted  to  smaller  cor- 
porations. 

Municipal  corporations  are  generally  granted  power  to  man- 
age and  control  the  finances  and  property  of  the  city,  and  to 
make  proper  ordinances  for  the  government  and  good  order  of 
the  city,  the  suppression  of  vice  and  intemperance,  and  the  pre- 
vention of  crime.  For  these  purposes  they  are  authorized  to 

is  Hood   v.   Lynn,   1    Allen,   103.  Willard  v.  Newburyport,  12  Pick. 

But  the  local  matters  which  New  227;     (town-house)     Spaulding    v. 

England  towns  are  enabled  to  care  Lowell,  23  Pick.  71.    And  see  Tor- 

for,  are  denned  by  original  usage,  rent  v.  Muskegon,  47  Mich.  115. 
impliedly     confirmed,     in     general        n  Goodnow,  Municipal  Problems, 

terms,  by  statute.     (Town-clocks)  p.  252. 


§  30]  GENERAL  SCOPE  OF  POWER.  35 

enact  ordinances  licensing  amusements,  prohibiting  gaming,  es- 
tablishing boards  of  health  and  public  markets,  providing  for  a 
standard  of  weights  and  measures,  a  system  of  quarantine,  tax- 
ing animals  running  at  large,  abating  nuisances,  regulating  driv- 
ing, slaughter-houses,  butcher  shops  and  various  other  occupa- 
tions. 

The  powers  of  counties  and  townships  vary  according  to  local- 
ity. In  the  western  states,  where  the  powers  are  divided  between 
the  two  bodies,  the  county  ordinarily  has  power  to  sue  and  be 
sued,  to  purchase  and  hold  real  and  personal  estate  for  the  use 
of  the  county,  lands  sold  for  taxes,  and  under  judicial  proceedings 
in  which  the  county  is  plaintiff,  to  sell  and  convey  real  and  per- 
sonal estate  owned  by  the  county,  and  to  make  all  contracts  and 
do  all  other  acts  in  relation  to  the  property  and  concerns  of  the 
county  necessary  to  the  exercise  of  its  corporate  powers. 

Often  duties  are  laid  upon  public  corporations  by  mandatory 
statutes.  Examples  are  found  in  the  duty  to  repair  streets  or  to 
support  the  poor  which  are  often  expressly  imposed  upon  cities 
and  towns. 

§30.  General-welfare  clause. — In  addition  to  the  grant  of 
specific  powers,  most  charters  contain  a  clause  granting  power 
to  provide  for  the  preservation  and  promotion  of  the  public 
welfare,  and  the  peace  and  safety  of  the  community.  This  pro- 
vision is  generally  given  a  liberal  construction,  and  under  it 
ordinances  have  been  enacted  regulating  the  blasting  of  rocks, 
street  preaching,  destruction  of  trees  in  public  places,  and  other 
such  purposes.15  It  is  generally  held  that,  in  the  absence  of 
statute  or  charter  provision  requiring  a  different  interpretation, 
the  general- welfare  clause  will  authorize  a  corporation  to  restrain 
animals  from  running  at  large.16  The  mere  fact  that  the  charters 
of  some  cities  in  a  state  contain  express  provision  authorizing  the 
enactment  of  ordinances  for  this  purpose,  and  that  no  such  pro- 
vision is  contained  in  other  charters,  does  not  in  itself  prevent 
the  latter  cities  from  enacting  such  ordinances  under  the  gen- 
eral-welfare clause.17 

is  Commonwealth   v.   Parks,   155  39  L.  R.  A.  649,  and  note  at  p.  674 

Mass.    531,    30    N.    E.    174 ;    Com-  where  the  cases  are  collected.    Con- 

monwealth  v.  Davis,  140  Mass.  485 ;  tra,  Collins  v.  Hatch,  18  Ohio,  523, 

State  v.  Merrill,  37  Me.  329.  51  Am.  Dec.  465. 

is  Wilcox   v.   Hemming,   58  Wis.  "  Cochrane  v.  Frostburg,  81  Md. 

144,  46  Am.  Rep.  625 ;  Hagerstown  54,  27  L.  R.  A.  728. 
V.  Witmer,  86  Md.  293,  37  Atl.  965, 


36  PUBLIC  CORPORATIONS.  [§31 

§31.  The  exercise  of  power  beyond  boundaries. — As  a 
general  rule  a  corporation  cannot  exercise  its  powers  beyond  its 
corporate  limits.18  But  authority  to  do  so  may  be  conferred 
by  statute  based  upon  a  public  necessity,19  as  where  a  city  is 
authorized  to  construct  water-works  at  a  distance  beyond  its 
limits.  Under  a  charter  containing  general  authority  over 
drainage,  the  city  may  enter  into  contracts  for  or  prosecute  work 
beyond  its  limits  for  the  purpose  of  discharging  sewage  where 
it  will  not  endanger  the  health  of  the  community.20  So  a  city 
may  by  ordinance  require  that  an  applicant  for  milk  license 
shall  consent  that  the  dairy  herd  from  which  he  obtains  his 
milk  may  be  inspected  by  the  commissioner  of  health,  although 
the  herd  is  kept  outside  of  the  city  limits.21 

§  32.  Statutory  requirements  as  to  form. — When  the  manner 
in  which  the  power  of  a  public  corporation  may  be  exercised  is 
prescribed  by  the  charter,  that  mode  is  the  measure  of  power  and 
must  be  strictly  followed.  "When  any  power  is  granted  and 
the  mode  of  its  exercise  prescribed,  that  mode  must  be  strictly 
pursued. ' '  22  Thus,  a  contract  executed  in  a  manner  other  than 
that  prescribed  by  the  statute  is  void.23 

§33.  Constitutional  principles  limiting  powers  of  govern- 
ment apply  to  public  corporations. — A  public  corporation  can- 
not derive  from  legislative  grant  any  greater  power  than  the 
legislative  itself  can  exercise.  It  is  restricted,  in  the  exercise  of 
its  authority,  by  the  constitutional  provisions  which  apply  as 

is  Farwell  v.   Seattle,  43  Wash.  68  X.  W.  1066,  34  L.  R.  A.  318. 

141,  86  Pac.  217 ;  Elkhart  v.  Lip-  22  Whiting  v.  West  Point,  88  Va. 

schitz,  164  Ind.  671,  74  N.  E.  528;  905,  15  L.  R.  A.  861;  Minturn  v. 

Donable  v.  Harrisonburg,  104  Vst  Larue,  23  How.  (U.  S.)  435. 

533,    52    S.    E.    174,    113    Am.    St.  23  Fones  Bros.  H.  Co.  v.  Erb,  54 

1056,  2  L.  R.  A.  (N.  S.)  910.  Ark.  645,  13  L.  R.  A.  353;  Cordilla 

19  Van   Hook  v.    Selma,   70   Ala.  v.  Pueblo,  34  Colo.  293,  82  Pac.  594 ; 
361,  45  Am.  Rep.  85;  Coldwater  v.  Mazet   v.   Pittsburgh,   137   Pa.   St. 
Tucker,  36  Mich.  474,  24  Am.  Rep.  548 ;  Mueller  v.  Eau  Claire  Co.,  108 
601.      See  1  Andrews,  Am.  Law,  Wis.  3G4,  84  N.  W.  430 ;  Wheeler  v. 
§405.  Wayne  Co.,  132  111.  599,  24  N.  E. 

20  McBean    v.    Fresno,    112    Cal.  625 ;  Weitz  v.  Independent  District, 
159,    44    Pac.    358,    31    L.    R.    A.  79  Iowa,  423 ;  Zottman  v.  San  Fran- 
794 ;  Coldwater  v.  Tucker,  36  Mich.  Cisco,  20  Cal.  96,  81  Am.  Dec.  96 ; 
474,    24   Am.    Rep.    601;    and   see  Niles  W.  W.  v.  Niles,  59  Mich.  311. 
Shawneetown  v.  Baker,  85  111.  563.  311. 

21  State  v.  Nelson,  66  Minn.  166, 


§33] 


GENERAL   SCOPE  OF  POWER. 


37 


general  limitations  upon  the  legislative  and  governmental  power 
of  the  state.  In  appropriating  money  it  is  bound  by  the  general 
restrictions  on  the  taxing  power.  It  cannot,  for  example,  spend 
money  or  issue  bonds  to  aid  a  private  enterprise,  even  though  the 
enterprise  would  result  in  increased  commercial  prosperity  to  its 
inhabitants.24  It  cannot  construct  a  public  building  for  the  use 
of  a  private  association.25  It  cannot  take  property,  or  appro- 
priate public  property,  for  private  use ; 26  nor  take  property  for 
public  use  without  the  consent  of  the  owner  except  under  author- 
ity to  exercise  the  right  of  eminent  domain.27  Its  ordinances  must 
not  exceed  the  police  power  of  the  state ; 28  must  be  equal  and  not 
discriminating ; 29  must  not  interfere  with  interstate  com- 
merce ; 30  or  conflict  with  federal  statutes.  Statutes  authoriz- 
ing measures  of  these  kinds  are  unconstitutional,  and  do  not 
enlarge  the  authority.31 


24  See  infra,,  §  230.  Loan  Assn.  v. 
Topeka,  20  Wall.  655 ;  Lowell  v.  Bos- 
ton, 111  Mass.  454.     "The  taxing 
power  of  the  city,  like  that  of  the 
state,  must  be  for  public  purposes 
— maintenance  of  schools,  libraries, 
sewers,     public     watering-troughs, 
city  lockups,  city  hall,  and  all  the 
various  essentials  or  conveniences 
reasonably  necessary  for  the  man- 
agement of  municipal  affairs — and 
may  be  provided  for  out  of  the  gen- 
eral fund."    1  Andrews,  American 
Law,  §411. 

25  Kingman     v.     Brockton,     153 
Mass.  255. 


2«  Proprietors  of  Mt.  Hope  Ceme- 
tery v.  Boston,  158  Mass.  509. 

27  Sheldon     v.     Kalamazoo,     24 
Mich.  383. 

28  Chicago    v.    Gunning    System, 
214  111.  628. 

29  Brown  v.  Judge  of  Sup.  Ct., 
145  Mich.  413 ;  Saginaw  v.  Saginaw 
Circuit     Judge,     106     Mich.     32; 
Strauss  v.  Galesburg,  203  111.  234. 

30  Muskegon  v.  Zeeryp,  134  Mich. 
181 ;  Marshalltown  v.  Blum,  58  la. 
184,  12  N.  W.  266,  43  Am.  Rep.  116. 

si  Kingman  v.  Brockton,  supra. 


CHAPTER  IY. 


POWER  TO  CONTRACT  AND  OWN  PROPERTY. 


§  34.  Power  to  incur  debts. 

35.  Power  to  borrow  money. 

36.  Power  to  make  ordinary  con- 

tracts. 

37.  Letting    contracts    to    lowest 

bidder. 

38.  Remedy  of  bidder. 

39.  Ratification    of    invalid    con- 

tracts. 


§  40.  Paying   money   when   not  le- 
gally liable. 

41.  Indemnifying  officers. 

42.  Compromise  and  arbitration. 

43.  Power  to  own  property. 

44.  Power    to    acquire    by    gift: 

trusts. 

45.  Different  classes  of  municipal 

property. 


§  34.  Power  to  incur  debts. — The  power  to  contract  on  cred- 
it— to  incur  debts— is  an  incidental  or  implied  power  of  a  public 
corporation,  except  under  extraordinary  provisions.  The  corpo- 
ration may  also  give  evidences  or  vouchers  of  indebtedness,  such 
as  notes  and  bonds,  and  will  be  bound  by  the  same,  although,  as 
we  shall  see,  they  will  not  ordinarily  have  the  character  of  com- 
mercial paper.1 

§35.  Power  to  borrow  money. — In  the  absence  of  some 
special  authority,  a  public  corporation  has  no  power  to  borrow 
money.2  The  authority  may  be  expressly  given ;  or  it  may  result 
from  some  express  authority  which  necessarily  implies  it.  Under 
the  latter  rule  it  is  not  sufficient  that  it  is  convenient  to  borrow 
in  order  to  carry  out  the  authority  given ;  the  borrowing  of  funds 
must  be  so  essentially  connected  therewith  as  that  it  may  be  said 
to  have  been  contemplated  as  proper  by  the  legislature.3 

§  36.  Power  to  make  ordinary  contracts. — Unless  restricted 
by  its  charter,  a  municipal  corporation  has  a  general  implied 
power  to  make  such  contracts  as  are  reasonably  necessary  for  the 


iKetchum  v.  Buffalo,  14  N.  T. 
356.  See  §  216,  infra. 

2  Mayor  v.  Ray,  19  Wall.  (U.  S.) 
468 ;  Allen  v.  Lafayette,  89  Ala.  641, 
8  So.  R.  30,  9  L.  R.  A.  497.  Contra, 


Mills  v.  Gleason,  11  Wis.  470 ;  Love- 
joy  v.  Foxcroft,  91  Me.  367,  40  Atl. 
141. 

3  Wells  v.  Salina,  119  N.  Y.  280, 
23  N.  E.  870,  7  L.  R.  A.  799. 

38 


§  37]  TO   CONTRACT  AND  OWN  PROPERTY.  39 

purpose  of  carrying  into  effect  the  objects  of  its  creation.4  A 
municipal  corporation  can  bind  itself  only  by  such  contracts  as 
are  reasonably  within  its  purposes,  and  there  is  no  estoppel 
against  it  to  deny  the  validity  of  a  contract  which  is  beyond  such 
purposes,  or  which  has  been  made  in  violation  of  charter  require- 
ments.5 

When  a  city,  in  the  exercise  of  its  governmental  powers,  and  of 
its  discretion  as  to  time  and  maruer,  decides  to  make  a  certain 
improvement,  the  contracts  made  for  the  purpose  of  carrying  on 
the  work  cannot  be  revoked  by  the  corporation.  An  attempted 
revocation  on  the  ground  that  the  city  attorney  had  advised  that 
the  ordinance  authorizing  the  work  was  invalid  is  no  defense  to 
an  action  on  the  contract.6 

§37.  Letting  contracts  to  lowest  bidder. — Where  a  city 
charter  does  not  prescribe  the  mode  of  entering  into  contracts  for 
improvements,  or  the  purchase  of  materials,  and  the  city  council 
does  not  abuse  its  discretionary  powers,  and  does  not  act  fraudu- 
lently, it  may  award  contracts  without  letting  them  to  the  lowest 
bidder,  if  the  contract  is  otherwise  within  the  scope  of  its  corpo- 
rate power.7  But  when  the  charter  requires  that  such  contracts 


4  Douglass    v.    Virginia    City,   5  Water   Co.,   115  Fed.   171;   Walla 

Nev.  122;  East  St.  Louis  v.  East  Walla  v.  Walla  Walla  Water  Co., 

St.  Louis  Gas  L.  Co.,  98  111.  415.  172  U.  S.  1. 

(Power  of  local  board  to  give  sealed  1  Yarnold  v.   City  of  Lawrence, 

instrument)  Peterson  v.  New  York,  15  Kan.  126 ;  Elliott  v.  Minneapo- 

194  N.  Y.  437.  lis,  59  Minn.  Ill,  60  N.  W.  1081. 

s  Newbery  v.  Fox,  37  Minn.  141,  In   the  case  last  cited   the  court 

5  Am,  St.  Rep.  830.    "The  doctrine  said :    "But   the  power   of  a   city 

of    ultra    vires    is    applied    with  council  is  not  unlimited.    However 

greater     strictness     to     municipal  difficult  it  might  be  to  investigate 

bodies    than    to    private    corpora-  the  motives  of  the  members  of  a 

tions."   Hope  v.  Alton,  214  111.  102,  city  council,  yet  whenever  they  un- 

73  N.  E.  406.    And  see  1  Andrews,  dertake    to    use    their    corporate 

American  Law,  §  384.  powers  fraudulently  for  their  own 

e  Safety  Ins.  W.  &  C.  Co.  v.  advantage  or  for  the  benefit  or  in- 
Mayor  of  Baltimore  (C.  C.  A.),  66  jury  of  others,  such  acts  are  void. 
Fed.  140.  An  ordinance  which  at-  Any  other  rule  would  be  disas- 
tempts  to  revoke  or  to  violate  a  trous,  and  the  most  salutary  doc- 
valid  contract  of  the  corporation  is  trine  that  can  be  upheld,  and  which 
a  law  impairing  the  obligation  of  a  we  uphold  as  the  law,  is  to  allow 
contract  within  the  meaning  of  the  fraudulent  contracts  on  the  part  of 
United  States  Constitution.  Amer-  municipal  corporations  to  be  im- 
ican  Water  Works  etc.  Co.  v.  Home  peached." 


40 


PUBLIC   CORPORATIONS. 


[§37 


shall  be  let  to  the  lowest  bidder,  a  contract  let  in  any  other  man- 
ner is  invalid.8  When  the  right  is  properly  reserved  to  reject 
any  and  all  bids,  it  is  equivalent  to  an  offer  to  contract,  and  a  bid- 
der acquires  no  rights  until  his  bid  is  actually  accepted.9  The 
advertisement  for  bids  must  be  in  such  form  as  to  permit  of  bona 
fide  competitive  bidding.10  Charter  provisions  ordinarily  require 
that  the  contract  shall  be  let  to  the  lowest  responsible  bidder.  A 
certain  discretion  is,  by  such  a  provision,  left  to  the  awarding 
officers,  which  will  not  be  controlled  by  the  courts.  The  judgment 
and  skill  of  the  bidder,  as  well  as  his  financial  standing,  may  be 
considered  by  the  awarding  officers.11 

8  Brady  v.  Mayor  etc.  of  New  for  the  performance  of  the  work  re- 
York,  20  N.  Y.  312 ;  People  v.  Flagg, 
17  N.  Y.  584;  Breevort  v.  Detroit, 
24  Mich.  322 ;  Fones  H.  Co.  v.  Erb, 
54  Ark.  645,  17  S.  W.  7;  Addis  v. 
Pittsburgh,  85  Pa.  St.  379;  Frame 
v.  Felix,  167  Pa.  St.  47,  27  L.  R.  A. 
802 ;  Weitz  v.  Independent  District, 
79  Iowa,  423,  44  N.  W.  696.  See 
Crabtree  v.  Gibson,  78  Ga.  230,  3 
S.  E.  10. 

»  Anderson  v.  Board,  122  Mo.  61, 
26  L.  R.  A.  707,  and  note;  Stanley- 
Taylor  Co.  v.  Supervisors,  135  Cal. 
486,  67  Pac.  783. 

ioMazet  v.  Pittsburgh,  137  Pa. 
St.  548;  Ely  v.  Grand  Rapids,  84 
Mich.  337 ;  Barber  Asphalt  Pav.  Co. 
v.  Hunt,  100  Mo.  22. 

"Kelly  v.  Chicago,  62  111.  279; 
Douglass  v.  Commonwealth,  108  Pa. 
St.  559;  State  v.  M'Grath,  91  Mo. 
386;  State  v.  Trenton,  49  N.  J.  L. 
339,  12  Atl.  902 ;  Hoole  v.  Kinkead, 
16  Nev.  217;  Johnson  v.  Sanitary 
Dist.  of  Chicago,  163  111.  285,  45 
N.  E.  213.  In  Frame  v.  Felix,  167 
Pa.  St.  47,  the  court  said:  "The 
provision  that  contracts  for  munici- 
pal work  shall  be  given  to  the  low- 
est responsible  bidder  does  not 
have  sole  reference  to  the  mere  pe- 
cuniary liability  of  the  contractor, 
but  involves  a  discretion  on  the  part 
of  the  municipal  authorities  in  the 
selection  of  the  agency  best  fitted 


quired.  Commonwealth  v.  Mitchell, 
82  Pa.  St.  343;  Findlay  v.  Pitts- 
burg,  id.  351 ;  Douglass  v.  Common- 
wealth, 108  Pa.  St.  559;  Interstate 
Vitrified  Brick  &  Paving  Co.  v. 
Philadelphia,  164  Pa.  St.  477.  But 
that  discretion  being  granted,  the 
purpose  of  the  provision  which  was 
based  upon  motives  of  public  econ- 
omy, and  originated  perhaps  from 
some  degree  of  mistrust  of  the  offi- 
cers to  whom  the  duty  of  making 
contracts  for  the  public  service  was 
committed  (Brady  v.  New  York,  20 
N.  Y.  312),  clearly  was  to  secure  to 
the  city  the  benefit  and  advantage 
of  fair  and  just  competition  be- 
tween bidders,  and  at  the  same 
time  close  as  far  as  possible,  every 
avenue  to  favoritism  and  fraud  in 
its  various  forms  (Mazet  v.  Pitts- 
burgh, 137  Pa.  St.  548),  and  to  in- 
sure 'the  accomplishment  of  the 
work  at  the  lowest  price  by  sub- 
jecting the  contract  for  it  to  public 
competition.'  In  re  Mahan,  20  Hun 
(N.  Y.) ,  301.  In  order  to  effectuate 
this  purpose  it  is  manifest  that 
where  something  is  to  be  done  that 
is  required  to  be  submitted  to  com- 
petition, every  essential  part  of  it 
that  goes  to  make  up  the  whole  of 
it  must  be  submitted  to  such  com- 
petition." 


§  38]  TO   CONTRACT  AND  OWN  PROPERTY.  41 

§38.  Remedy  of  bidder. — Mandamus  or  mandatory  injunc- 
tion to  require  the  execution  of  the  contract  to  the  lowest  bidder 
is  generally  refused  on  the  ground  that  there  is  a  discretion  vested 
in  the  awarding  officers,  that  there  is  an  adequate  remedy  at  law 
or  that  the  provision  is  for  the  benefit  of  the  public,  and  not  the 
bidder.12 

In  a  recent  case  13  the  circuit  court  of  appeals  said :  ' '  That  tax- 
payers whose  taxes  are  to  be  increased,  or  whose  property  is  to  be 
depreciated  in  value,  by  the  fraudulent  or  arbitrary  violation  of 
this  provision  by  the  officers  of  a  municipality,  may  maintain  a 
bill  to  enjoin  their  proposed  action,  is  a  proposition  now  too  well 
settled  to  admit  of  question.14  These  suits,  however,  stand  upon 
the  ground  that  the  statutes  on  which  they  are  based  were  enacted, 
and  the  duties  there  specified  were  imposed  upon  the  public 
officers,  for  the  express  benefit  of  the  tax-payers  and  property 
holders  who  bring  the  suits.  The  appellee  pays  no  taxes  for  this 
paving.  He  has  no  property  which  will  be  injured  by  the  viola- 
tion of  the  provisions  relied  upon,  and  no  one  who  has  is  here  to 
complain  of  their  violation.  So  far  as  the  purpose  of  the  enactment 
is  concerned,  the  complainant  is  a  stranger  to  the  statute — one 
whose  interests  were  not  considered,  or  intended  to  be  considered, 
by  the  enactment.  He  is  a  mere  bidder  for  some  of  the  public 
work  of  this  city,  a  contractor,  or  one  who  desires  to  become  a  con- 
tractor. *  *  *  It  is  upon  this  principle  that  it  is  now  settled 
by  the  great  weight  of  authority  that  the  lowest  bidder  cannot 
compel  the  issue  of  a  writ  of  mandamus  to  force  the  officers  of  a 
municipality  to  enter  into  a  contract  with  him. ' ' 15  Nor  can  he 
maintain  an  action  at  law  for  damages  for  the  refusal  to  enter 

12  Dibble  v.  New  Haven,  56  Conn.  Wash.  518,  37  Pac.  695 ;  1  Beach, 

199 ;  State  v.  Fond  du  Lac  Board  of  Pub.    Corp.,    §  634 ;    2    High,    Tnj., 

Education,  24  Wis.  683;  People  v.  §1251;   Mayor  v.   Keyser,  72  Md. 

Campbell,  72  N.   Y.  496.     Contra,  106,  19  Atl.  706;  People  v.  Dwyer, 

State  v.  Marion  Co.  Com'rs,  39  Ohio  90  N.  Y.  402. 

St.  188 ;  Times  Pub.  Co.  v.  Everett,        «  High,  Extr.  Rem.,  §  92 ;  State 

9  Wash.  518   (1894),  37  Pac.  695,  v.   Board,  24  Wis.   683;   Common- 

43  Am.  St.  Rep.  865.    See  annota-  wealth  v.  Mitchell,  82  Pa.  St.  343; 

tion  to  Anderson  v.  Board,  in  26  Kelly  v.  Chicago,  62  111.  279 ;  State 

L.  R.  A.  707,  122  Mo.  61.  v.  McGrath,  91  Mo.  386 ;  Douglass 

is  Colorado  Pav.  Co.  v.  Murphy,  v.  Commonwealth,  108  Pa.  St.  559 ; 

78  Fed.  28.  Madison  v.  Harbor  Board,  76  Md. 

i*  Times  Pub.  Co.  v.  Everett,  9  395,  25  Atl.  337. 


42  PUBLIC   CORPORATIONS.  ;[§  39 

into  the  contract.16  "This  principle  is  as  fatal  to  a  suit  in  equity 
as  to  an  action  at  law.  It  goes  not  to  defeat  one  particular  cause 
of  action,  but  to  defeat  the  right  to  any  relief. ' ' 17  The  bidder 
has  no  remedy  in  the  absence  of  a  mandatory  statute  or  when  the 
right  to  reject  is  reserved.18  But  when  the  bid  is  rejected  upon 
grounds  not  within  the  province  of  the  board  to  pass  upon,19  or 
when  the  officers  act  fraudulently,20  the  rights  of  the  lowest  bid- 
der will  be  protected.  A  bidder  whose  bid  is  fraudulent,21  ob- 
scure, or  so  framed  as  to  prevent  competition,  is  not  entitled  to  the 
contract.22 

§39.  Ratification  of  invalid  contracts. — Where  a  contract 
made  on  behalf  of  a  public  corporation  by  one  of  its  officers,  or  by 
an  agent,  is  avoidable  as  against  the  corporation  only  because  of 
fraud  or  because  the  officer  had  no  authority  from  the  corporation 
to  make  it,  the  contract  may  be  ratified  by  the  corporate  authority 
which  had  power  to  authorize  the  transaction  originally.23 
Usually  a  ratification  will  not  be  inferred  or  result  from  mere 
silence  of  the  members  of  a  governing  body,  with  knowledge,  even 
in  some  cases  where  there  would  be  held  to  have  been  a  ratification 
by  acquiescence  if  the  corporation  were  a  private  one.  The  ratifi- 
cation must  be  by  affirmative  action  of  the  body  acting  officially ; 
as  by  appropriating  the  consideration  of  the  contract,  or  other- 
wise expressly  recognizing  without  repudiating  it.24 


IB  Talbot  Pav.  Co.  v.  City  of  De-  22  Fones  Bros.  H.  Co.  v.  Erb,  54 

troit,    109    Mich.    657,    67    N.    W.  Ark.  645,  17  S.  W.  7,  13  L.  R.  A. 

979 ;  Gas  Light  Co.  v.  Donnelly,  93  353 ;  Mazet  v.  Pittsburgh,  137  Pa. 

N.  Y.  557.  St.  548 ;  Coggeshall  v.  Des  Moines, 

17  Colorado  Pav.  Co.  v.  Murphy,  78  Iowa,  235 ;  In  re  Anderson,  109 

78  Fed.  28,  23  C.  C.  A.  631,  37  L.  N.  Y.  554 ;  Littler  v.  Jayne,  124  111. 

R.  A.  630.  123.    See  Nash  v.  St.  Paul,  11  Minn. 

is  State  v.  Lincoln  Co.,  35  Neb.  174. 

346 ;  State  v.  Dickson  Co.,  24  Neb.  23  Findlay  v.  Pertz,  66  Fed.  427, 

106.  31    C.    C.    A.    340;    Backman    v. 

is  Cleveland  etc.  Tel.  Co.  v.  Met-  Charlestown,  42  N.  H.  125 ;  People 

ropolitan  Fire  Com.,  55  Barb.   (N.  v.  Swift,  31  Cal.  26;  Howe  v.  Kee- 

Y.)  288.  ler,  27  Conn.  538;  Shawneetown  v. 

20  State  v.  Trenton,  49  N.  J.  L.  Baker,  85  111.  563. 

339,  12  Atl.  902.  24  Agawam  National  Bank  v.  So. 

21  Baltimore  v.   Keyser,  72  Md.  Hadley,    128   Mass.    503;    Otis    v. 
106 ;   State  v.  York  Co.  Com.,  13  Stockton,  76  Me.  506. 

Neb.  57. 


§40] 


TO  CONTEACT  AND  OWN  PROPERTY.  43 


Ratification  cannot  arise  solely  from  the  acts  of  corporate 
officers  who  could  not  have  authorized  the  contract  at  its  incep- 
tion ;  for  example,  from  payments  by  a  city  treasurer  upon  a  cor- 
porate contract.25  And  no  contract  can  be  ratified  which  was  be- 
yond the  power  of  the  corporation  to  make  originally,  either 
because  of  the  subject-matter,26  or  because  statutory  formalities 
were  not  complied  with.27  Thus,  if  a  statute  required  that  a  con- 
tract be  made  only  after  advertisement  and  bidding  and  with  the 
lowest  responsible  bidder,  a  contract  made  by  municipal  officers 
without  compliance  with  the  provision  cannot  be  ratified.28  In 
such  cases,  the  legislature  can  cure  the  defect  by  a  validating 
though  retroactive  statute,  provided  the  purpose  of  the  contract 
be  a  constitutional  one.29 

§  40.  Paying  money  when  not  legally  liable. — A  public  cor- 
poration is  not  bound  to  refer  one  who  has  a  disputable  claim 
against  it  to  the  courts  and  require  litigation ;  if  benefit  has  ac- 
crued to  the  corporation  for  a  corporate  purpose,  its  authorities 
may  pay  the  claim,  if,  hi  their  judgment,  it  is  better  to  do  so.  A 
tax  levied  to  raise  the  money  will  be  valid.30 

So  a  municipal  corporation  may  pay  money  for  a  benefit  re- 
ceived, which  supports  a  moral  or  equitable  obligation  against  it, 
though  there  be  no  legal  ground  for  urging  a  liability,  provided 
the  benefit  concerns  some  object  not  ultra  vires,  and  be  sufficient 

25  Wormstead  v.  Lynn,  184  Mass,  was  supposed  to  represent  the 

425,  68  N.  E.  841.  whole,  had  been  judicially  held 

2«  Lewis  v.  Shreveport,  108  U.  S.  valid.  Under  these  circumstances 

282;  Hodges  v.  Buffalo,  2  Denio,  shall  the  town,  liable  to  pay  the 

110.  largest  portion,  be  compelled,  at  a 

27  Marsh  v.  Fulton  Co.,  10  Wall;  large  expense,  to  litigate  and  ob- 
676.  tain  a  judgment  of  court  upon  each 

28  Brady  v.  Mayor  etc.,  of  New  item  before  it  can  enforce  a  tax 
York,  20  N.  Y.  312 ;  Zottman  v.  San  upon  its   inhabitants  for  its  pay- 
Francisco,  20  Cal.  96.    Compare,  if  ment?    We  think  not.    They  would 
the  requirement  were  by  ordinance,  clearly  have  the  right  to  settle  this 

29  Winn  v.  Macon,  21  Ga.  275 ;  as  any  other  disputed  claim  against 
Lockhart    v.    Troy,    48    Ala.    579;  them,  thus  saving  the  cost,  vexa- 
Keithsburg  v.  Frick,  34  111.  405 ;  tion  and  uncertainty  necessarily  at- 
Mills  v.  Charleston,  29  Wis.  400.  tendant  upon  litigation;  provided 

so  "Here  was  a  debt  disputable,  of  course,  that  it  is  done  in  good 

perhaps,  but  returned  as  a  debt  by  faith  and  in  the  exercise  of  sound 

the  legally  appointed  commission-  discretion."    Vose  v.  Frankfort,  64 

er,  part  of  which,  and  a  part  which  Me.  299. 


44 


PUBLIC   CORPORATIONS. 


[§41 


to  support  taxation.31  The  line  of  discretion  is  crossed  where 
the  payment  becomes  a  mere  gift  of  public  money  for  private  use, 
which  is  always  unlawful.32 

§41.  Indemnifying  officers. — Municipal  corporations  have 
power  to  indemnify  their  officers  for  expenses  or  liabilities  in- 
curred in  accomplishing  the  corporate  purposes.  A  town  may 
reimburse  tax-assessors  for  money  paid  by  them  to  tax-payers,  to 
acquit  themselves  of  liability  incurred  in  collecting  taxes  upon 
an  irregular  assessment,  where  the  money  has  beeen  legitimately 
used  by  the  town.33  A  town  may  reimburse  the  members  of  its 
school  board  for  money  paid  in  defending  themselves  against  an 
action  for  libel,  founded  on  their  annual  report.34  But  a  corpora- 
tion can  indemnify  or  reimburse  its  officers  under  this  principle 
only  when  the  duty  which  entailed  the  loss  related  to  corporate 
purposes  or  interests.  In  the  first  illustration  above,  the  town 
could  not  pay  to  the  assessors  the  amount  of  state  taxes  included 
in  the  illegal  assessment,  which  had  been  turned  over  to  the 
state.35 


si  Bean  v.  Jay,  23  Me.  117; 
Friend  v.  Gilbert,  108  Mass.  408; 
Cm-ran  v.  HoUiston,  130  Mass.  272. 

82  People  v.  Parker,  231  111.  478. 

33  Nelson  v.  Milford,  7  Pick.  18. 

s*  Fuller  v.  Groton,  11  Gray,  340. 

ss  Nelson  v.  Milford,  7  Pick.  18; 
(but  notice  that  in  collecting  the 
state  taxes  the  assessors  acted  as 
independent  public  officers).  See 
Gregory  v.  Bridgeport,  41  Conn.  76 
(independent  public  officer),  and 
cases  cited. 

In  Flood  v.  Leahy,  183  Mass.  232, 
at  234,  the  court  said:  "The  cases 
of  Vincent  v.  Nantucket  (12  Gush. 
103) ,  and  Fuller  v.  Groton,  11  Gray, 
340,  when  contrasted  with  each 
other,  furnish  a  good  illustration 
of  the  application  of  the  rule  which 
has  been  followed  in  construing  the 
statute  [authorizing  appropriation 
of  money  for  corporate  purposes]. 
In  the  first  case  it  was  held  that 
the  town  was  not  bound  by  its  cor- 
porate vote  to  pay  the  expenses  in- 
curred by  a  field-driver  in  defend- 


ing a  suit  brought  against  him  for 
taking  up  and  impounding  cattle 
running  at  large  contrary  to  law. 
The  ground  of  the  decision  was  that 
'in  relation  to  field-drivers,  the 
whole  corporate  power  of  a  town  is 
exercised  and  exhausted  in  their 
election.  It  has  afterwards  no 
guardianship,  control,  or  authority 
over  them,'  and  they  are  not  act- 
ing in  relation  to  any  corporate 
duty  imposed  upon  the  town.  In 
the  second  case,  an  appropriation 
by  a  town  to  pay  the  expenses  in- 
curred by  members  of  the  school 
committee  in  defending  a  suit 
brought  against  them  for  an  al- 
leged libel  contained  in  their  annual 
report  was  held  valid,  upon  the 
ground  that  there  was  imposed 
upon  the  town  the  corporate  duty 
to  raise  money  for  the  support  of 
the  schools,  to  choose  a  committee 
to  superintend  them,  and  through 
the  committee  to  make  an  annual 
report  of  their  condition." 


§  42]  TO   CONTRACT  AND  OWN  PROPERTY.  45 

§42.  Compromise  and  arbitration. — A  municipal  corpora- 
tion may  take  a  note  in  payment  of  a  claim ;  36  or  may  compromise 
a  claim  which  seems  doubtful,  or  submit  it  to  arbitration.37 

But  where  a  method  for  the  collection  or  adjustment  of  a  claim 
is  prescribed  by  statute,  that  method  excludes  any  implied  dis- 
cretion in  the  corporation  to  collect  it  or  adjust  it  in  other  ways. 
A  note  cannot  be  taken  in  payment  of  taxes,  where  statutes  pro- 
vide for  a  sale  of  property  for  delinquent  taxes.38  Damages  to 
land  condemned  for  a  street  cannot  be  fixed  by  arbitration,  where 
a  statute  sets  out  the  procedure  for  awarding  damages.39  The 
express  provision  is  exclusive. 

Power  to  compromise  or  submit  to  arbitration  cannot  be  used 
to  shield  a  bare  gift ;  there  must  have  been,  at  least,  a  disputable 
claim.40 

§  43.  Power  to  own  property. — Usually  a  public  corporation 
of  general  powers  is  expressly  authorized  to  take  and  hold  prop- 
erty ;  the  authority  to  do  so  would  be  implied  from  the  incorpora- 
tion alone.  As  a  means  to  support  the  exercise  of  this  general 
power,  the  corporation  is  granted  a  general  power  of  taxation. 
In  addition,  it  is  usually  authorized  to  exercise  the  right  of  emi- 
nent domain. 

A  general  authority  to  purchase  property,  either  with  money 
raised  by  taxation  or  in  the  exercise  of  the  right  of  eminent  do- 
main, is  limited,  however,  to  the  declared  purposes  of  the  corpo- 
ration, to  which  purposes  it  is  merely  auxiliary  and  incidental.41 

36  Buffalo  v.  Bettinger,  76  N.  Y.  *i  "In  the  absence  of  express  pro- 

393.  hibitory  statutes,  or  of  statutes 

87  Agnew  v.  Brail,  124  111.  312,  16  which  in  terms  confer  and  limit, 

N.  E.  230;  Matthews  v.  Westboro,  and  therefore  define  and  measure, 

131  Mass.  521 ;  Shawneetown  v.  the  power,  the  capacity  to  acquire 

Baker,  85  111.  563 ;  Kane  v.  Fond  du  and  hold  property,  real  or  personal, 

Lac,  40  Wis.  495;  Dix  v.  Dummer-  must  be  fairly  incidental  to  some 

ston,  19  Vt.  263;  Paret  v.  Bayonne,  power  expressly  granted  or  abso- 

39  N.  J.  L.  559 ;  Springfield  v.  Walk-  lutely  indispensable  to  the  declared 

er,  42  Oh.  St.  543.  purposes  of  the  corporation.  Any 

ss  (Dicta)  Buffalo  v.  Bettinger,  greater  right  than  this  is  not  only 

76  N.  Y.  393.  not  granted,  but  is  impliedly  de- 

39  Somerville  v.  Dickerman,  127  nied."  2  Dillon,  Municipal  Corpo- 

Mass.  272.  rations  (4th  ed.),  §561. 

«  People  v.  Parker,  231  111.  478. 


46  PUBLIC   CORPORATIONS.  [  §  44 

A  public  corporation  cannot  purchase  property  merely  because 
the  acquisition  of  it  will  indirectly  yield  some  pecuniary  or 
commercial  advantage  to  its  citizens  as  individuals.42  So  a  power 
to  purchase  real  estate  "for  the  use,  convenience  and  improve- 
ment of  the  city"  does  not  enable  the  city  to  buy  land  to  be  used 
as  fair  grounds  by  a  private  corporation,  even  though  the  holding 
of  annual  fairs  would  bring  collateral  advantages  to  the  munici- 
pality and  to  its  citizens.43 

Express  authority  to  establish  a  specified  municipal  work  or 
institution  which  requires  property,  necessarily  implies  authority 
to  procure  the  property  therefor.  Authority  to  maintain  public 
schools  will  authorize  the  purchase  of  land  on  which  to  construct 
a  school-house.44  Authority  to  establish  markets  includes  author- 
ity to  purchase  the  land  for  a  market-house.45 

A  municipal  corporation  may,  of  course,  exercise  a  business  dis- 
cretion as  to  whether  it  will  purchase  property  outright  or  lease 
it ;  provided  charter  or  statute  does  not  direct  that  it  obtain  prop- 
erty for  the  particular  purpose  in  some  designated  way.46 

§  44.  Power  to  acquire  by  gift :  to  administer  trusts. — Al- 
though authority  to  acquire  property  by  purchase,  which  involves 
the  use  of  the  taxing  power,  extends  only  to  property  which  is 
reasonably  necessary  for  some  purpose  positively  authorized,  or 
some  duty  affirmatively  enjoined,  a  municipal  corporation  has  a 
general  implied  power  to  receive  property  by  gift.  This  is  in- 
volved in  its  general  power  to  own  property.  That  power  is  un- 
limited, as  concerns  the  mere  passive  receiving  and  holding  of 
property  for  value  or  income.47  A  city  may  even  acquire  lands 
by  adverse  possession.48  Before  the  practice  of  granting  the 
taxing  power  to  such  corporations  became  prevalent,  their  ex- 
penses were  largely  defrayed  from  property  obtained  by  grants. 

Municipal  corporations  have  a  general  power,  also  the  result  of 

42  Bussey  v.  Gilmore,  3  Me.  191 ;  4e  (Lease  of  rooms  for  offices) 
Place  v.  Providence,  12  R.  I.  1.  Davies  v.  New  York,  83  N.  Y.  207. 

43  Eufalie  v.  McNab,  67  Ala.  588,  4?  Coggeshall  v.  Pelton,  7  Johns, 
42  Am.  Rep.  118.  ch.  292 ;  Hamden  v.  Rice,  24  Conn. 

44  Tacoma  v.  Tacoma  L.  and  W.  350.     The  power  to  alienate  or  let 
Co.  15  Wash.  499,  46  Pac.  1119.  property  is  considered  later. 

45Ketchum  v.  Buffalo,  14  N.  Y.  "New  Shoreham  v.  Ball,  14  R. 
356.  I.  566. 


§  45]  TO   CONTRACT  AND  OWN  PROPERTY.  47 

colonial  usage,  to  take  and  administer  trusts  for  any  public  or 
charitable  purpose,  for  the  benefit  of  their  inhabitants.49 

§45.  Different  classes  of  municipal  property. — If  the  ac- 
quisition of  property  by  a  public  corporation  by  purchase  is  but 
auxiliary  to  the  accomplishing  of  some  authorized  corporate 
purpose,  the  powers  and  liabilities  of  the  corporation  in  respect 
to  given  property  depend  on  the  nature  of  the  purpose  for  which 
it  is  employed.  Property  held  for  state  purposes  have  the  char- 
acteristics of  public  property  in  general.  But  municipal  corpora- 
tions are  authorized  to  conduct  works  which,  though  for  a  service 
public  in  its  nature,  are  yet  voluntary  with  the  corporation,  and 
maintained  by  it  to  satisfy  the  local  needs  of  its  citizens,  as  a  sep- 
arate community,  rather  than  in  pursuance  of  an  object  of  state 
government.  Such  works,  because  of  these  characteristics,  are 
often  referred  to  as  private  or  corporate,  and  the  porperty  as 
private  or  corporate  property.  Such  terms  are  confusing;  but 
the  distinction  is  important,  especially  in  connection  with  ques- 
tions of  alienation,  legislative  control,  and  liability  for  torts,50 

49McDonogh's  Ex'r  v.  Murdoch,  these  being  county  purposes,  they 
15  How.  367 ;  Vidal  v.  Girard's  cannot  be  seized  as  trustees  for  the 
Admrs.  2  How.,  at  186;  Chambers  use  of  an  individual,  or  in  trust 
v.  St.  Louis,  29  Mo.  543 ;  Perin  v.  for  building  a  church  or  school- 
Carey,  24  How.  645.  "But  munici-  house  for  the  use  of  the  inhabi- 
pal  corporations  cannot,  for  the  tants  of  a  particular  town  in  the 
same  reasons  applicable  to  ordinary  county.  So  a  corporation,  with  au- 
corporations  aggregate,  hold  lands  thority  to  establish,  in  a  designated 
in  trust  for  any  object  or  matter  town,  an  institution  "for  the  in- 
foreign  to  the  purpose  for  which  struction  of  youth,"  cannot  be  a 
they  are  created,  and  in  which  they  trustee  under  a  will  or  grant  to 
have  no  interest.  Thus,  while  the  hold  funds  and  pay  over  the  income 
supervisors  of  a  county,  who  are  thereof  for  the  support  of  mission- 
made,  by  statute,  a  corporation  for  aries."  2  Dillon,  Municipal  Corpo- 
special  purposes  may  take  by  grant  rations  (4th  Ed.),  §  573. 
a  parcel  of  land  in  trust  that  they  50  For  further  reference  to  this 
should  erect  a  court-house  and  jail,  distinction  see  infra,  ch.  XIX. 


CHAPTER  V. 

POLICE  POWER. 


§  46.  Nature  and  scope  of  the  police 
power. 

47.  Scope  of  power  of  municipal- 

ity. 

48.  Regulation  of  occupations  and 

amusements. 

49.  The  preservation  of  health. 


50.  Nuisances. 

51.  Regulation  of  wharves. 

52.  Licenses. 

53.  Markets. 

54.  Prevention  of  fires. 

55.  Care  of  indigent  and  infirm. 


§46.  Nature  and  scope  of  the  police  power. — The  police 
power  of  government  extends  to  a  great  variety  of  subjects,  all 
having  to  do  ultimately  with  the  peace,  safety,  comfort,  and  pros- 
perity of  the  public. 

"Among  the  maxims  of  our  law  is  that  'regard  for  the  public 
welfare  is  the  highest  law.' 

"This  maxim,  coupled  with  the  restrictive  one  against  the  in- 
dividual that  'you  shall  so  conduct  yourself  and  so  enjoy  your 
own  as  not  to  injure  others, '  are  the  foundation  maxims  of  the 
police  power.  *  *  * 

' '  The  present  tendency  and  ultimate  effect  of  relative  conditions 
and  conduct  is  the  domain  of  proper  governmental  solicitude,  and 
the  legislative  power  may  properly  regulate  the  rights  of  individ- 
uals with  reference  to  the  present  or  ultimate  effect  upon  the 
public.  *  *  * 

"  'The  state  police,'  says  Mr.  Justice  Clifford,  'in  its  widest 
sense  comprehends  the  whole  system  of  internal  regulation,  by 
which  the  state  seeks  not  only  to  preserve  the  public  order  and 
to  prevent  offenses  against  her  authority,  but  also  to  establish  for 
the  intercourse  of  one  citizen  with  another  those  rules  of  justice, 
morality  and  good  conduct  which  are  calculated  to  prevent  a 
conflict  of  interests  and  to  insure  to  every  one  the  uninterrupted 
enjoyment  of  his  own,  as  far  as  is  reasonably  consistent  with  a 
like  enjoyment  of  equal  rights  by  others.'  "  * 


i  Andrews,  American  Law,  §  339. 
"We  hold  that  the  police  power  of 
a  state  embraces  regulations  de- 


mote the  public  health,  the  public 
morals  or  the  public  safety." 
(Drainage  of  swamp  lands)  C.  B. 


signed  to  promote  the  public  con-    &  Q.  R.  v.  Drainage  Commrs.,  200 
venience  and  general  prosperity  as    U.  S.  561,  at  592. 
well  as  regulations  designed  to  pro- 

48 


§  46]  POLICE  POWER.  49 

The  police  power  extends  to  the  protection  of  the  lives,  persons 
and  health  of  the  people,  and  to  the  protection  of  all  the  property 
within  the  state.  Any  occupation  which  is  of  such  a  nature  as  to 
be  liable  to  create  a  nuisance,  unless  subjected  to  special  regula- 
tion, comes  within  the  scope  of  its  operation.2  All  property  is 
held  subject  to  its  proper  exercise.3  While  a  wide  range  of  dis- 
cretion must  be  left  to  the  body  exercising  this  power,  it  is  neces- 
sarily limited  by  the  purpose  for  which  the  power  exists.  Acts 
done  under  it  must  have  some  relation  to  the  proper  end.  The 
rights  of  property  cannot  be  invaded  under  a  pretense  of  the 
police  power,  when  it  is  apparent  that  the  power  is  in  fact  sought 
to  be  used  for  a  different  purpose.4  The  power  must  be  exercised 
so  as  not  to  conflict  with  the  constitutional  rights  of  the  people.5 
The  various  powers  which  fall  under  the  name  of  police  powers 
are  ordinarily  specifically  enumerated  in  statute  or  charter.  In 
addition  thereto,  municipal  charters  commonly  contain  a  general 
provision  authorizing  the  exercise  of  powers  necessary  to  pre- 
serve the  peace  and  good  order  of  the  community  and  promote  the 
public  welfare.  Much  discretion  must  necessarily  be  left  to  the 
corporation ;  and  it  has  been  held  that  where  a  council  is  given 
power  to  make  such  regulations  as  it  shall  deem  necessary  and 
requisite  for  the  security,  welfare  and  convenience  of  the  corpora- 

2  Munn  v.  Illinois,  94  U.  S.  113 ;  dling  is  extensively  regulated  under 

Raymond  v.  Fish,  51  Conn.  80,  50  the  police  power.    City  of  Alma  v. 

Am.  Rep.  3 ;  State  v.  Orr,  68  Conn.  Clow,   146   Mich.   443,   109  N.   W. 

101,  28  L.  R.  A.  279 ;  People  v.  Ben-  853. 

nett,   83   Mich.    457 ;    Bancroft   v.  3  Rideout  v.  Knox,  148  Mass.  368, 

Cambridge,  126  Mass.  438 ;  Welsh  2  L.  R.  A.  81 ;  Comm.  v.  Sisson,  189 

v.  Boston,  126  Mass.  442,  note ;  Og-  Mass.  247,   75  N.   E.  619 ;   Health 

den  City  v.   McLaughlin,  5  Utah,  Dept.  v.  Rector,  145  N.  Y.  32,  27 

387,  16  Pac.  721 ;  Monroe  v.  City  L.  R.  A.  710. 

of  Lawrence,  44 'Kan.  607,  24  Pac.  ^Chaddock  v.  Day,  75  Mich.  527, 

1113,  10  L.  R.  A.  520 ;  Bittenhaus  13  Am.  St.  Rep.  468 ;  Ex  parte  Tut- 

v.  Johnston,  92  Wis.  588,  32  L.  R.  tie,  91  Cal.  589;  Ritchie  v.  People, 

A.  380.     A  statute  prohibiting  any  155  111.  98,  29  L.  R.  A.  79 ;  State  v! 

person  from  engaging  in  the  busi-  Donaldson,  41  Minn.  74. 

ness  or  occupation  of  fishing  in  the  5  In  re  Jacobs,  98  N.  Y.  98,  50  Am. 

waters  of  the  state  for  trout,  with  Rep.  636 ;  St.  Louis  v.  Weber,  44 

intent  to  sell  or  trade  the  fish,  held  Mo.   547 ;  Ex  parte  Whitwell,  98 

to  be  a  valid  exercise  of  the  police  Cal.  73,  19  L.  R.  A.  727 ;  Leep  v. 

power.     State  v.  Dow,  70  N.   H.  St.  Louis  etc.  R.  Co.,  58  Ark.  407, 

286,  47  Atl.  734,  53  L.  R.  A.  314.  23  L.  R.  A.  264. 
The  business  of  hawking  and  ped- 

4 


50  PUBLIC   CORPORATIONS.  [§47 

tion,  it  has  the  right  to  judge  as  to  what  ordinances  are  necessary 
to  preserve  the  health  of  the  people  of  the  municipality.6 

§  47.  Scope  of  power  of  municipality. — It  is  often  said  that 
a  municipal  corporation  acquires,  by  the  grant  in  general  terms 
of  authority  to  enact  police  ordinances,  the  broad  police  power  of 
the  state.7  This  is  not  quite  true.  A  city  council  cannot  legislate 
upon  the  offences  of  murder,  assault  and  battery,  adultery,  and 
the  like,  or  upon  marriage  and  divorce,  even  where  state  laws  do 
not  cover  the  matter.  Its  power  is  limited  by  the  purpose  for 
which  it  is  granted;  that  is,  to  regulations  for  peculiarly  local 
needs ;  and  it  is  doubtful  if  the  legislature  could  constitutionally 
confer  powers  upon  a  local  agency  to  regulate  those  matters  of 
general  public  concern  upon  which  constitutions  contemplate  uni- 
formity of  legislation  throughout  the  state.8 

The  police  power  of  a  municipal  corporation  is  usually  consid- 
ered as  that  of  regulation;  but  it  is  sometimes,  as  we  shall  see, 
deemed  to  cover  administrative  measures. 

"Where  the  litigation  in  the  following  matters  is  under  statute 
prohibitions,  the  question  is  as  to  the  police  power  of  the  state ; 
where  it  is  under  local  ordinances,  the  questions  are,  first, 
whether  the  ordinance  is  within  the  police  power  of  the  state, 
second,  whether  it  is  within  the  terms  of  the  particular  grant 
of  authority  to  the  local  agency. 

§  48.  Regulation  of  occupations  and  amusements. — Neither 
the  state  nor  municipalities  can  prohibit  the  prosecution  of  a 
harmless  business ;  but  it  may  subject  all  manner  of  occupations 
and  amusements  to  such  reasonable  regulations  as  are  necessary 
in  order  to  protect  the  interests  of  the  public.  When  the  business 
or  occupation  is  of  such  a  character  as  to  threaten  possible  injury 
to  the  public,  it  becomes  subject  to  reasonable  restrictions  by 
virtue  of  the  police  power.  But  it  is  only  for  the  purpose  of  pro- 

« City  of  St.  Paul  v.  Colter,  12  the  state  arose  from  mere  incorpo- 
Minn.  41,  90  Am.  Dec.  278;  Sum-  ration  alone;  that  is,  that  incorpo- 
merville  v.  Pressley,  33  S.  C.  56,  11  ration  carried  an  implied  power  to 
S.  E.  545,  26  Am.  St.  659,  8  L.  R.  pass  by-laws,  which  implied  power 
A.  854 ;  New  Orleans  Gas  Light  comprised  the  general  police  power 
Co.  v.  Hart,  40  La.  Ann.  474,  8  Am.  of  sovereignty.  See  criticism  in 
St.  544,  note.  Cristensen  v.  Fremont,  45  Neb.  160, 

7  See  e.  g.  Crawfordsville  v.  Bra-    63  N.  W.  364. 

den,  130  Ind.  149,  28  N.  E.  849,        « See   Opinion   of   Justices,    160 
where   it    was   considered   that   a    Mass.  586,  36  N.  E.  488. 
grant  of  the  entire  police  power  of 


§  48]  POLICE  POWER.  51 

moting  the  public  health,  welfare  and  morals  that  such  interfer- 
ences with  private  rights  will  be  upheld.9  Certain  kinds  of  occu- 
pations which  are  illegal  or  immoral  per  se,  such  as  gambling,10 
may  be  prohibited ;  but  an  ordinance  which  authorizes  the  police 
to  seize  and  destroy  gambling  implements  without  notice  to  the 
owner  is  void,  because  depriving  the  owner  of  his  property  with- 
out due  process  of  law.11  Occupations  not  intrinsically  harmful 
can  only  be  regulated.  Thus,  a  city  council  may  prohibit  the 
carrying  on  of  a  laundry  except  in  certain  localities  and  during 
certain  hours;  but  it  cannot  arbitrarily  refuse  to  issue  a  license 
to  run  a  laundry  to  a  person  without  reference  to  the  character  or 
qualifications  of  the  applicant.12  So  a  city  may  prohibit  the  keep- 
ing of  a  house  of  ill-fame,  and  impose  penalties  upon  the  owners 
of  a  building  leased  for  that  purpose ; 13  but  it  cannot  prohibit 
the  leasing  of  a  house  to  a  prostitute  simply  as  a  place  of 
residence. 

Power  to  regulate  a  business  must  be  exercised  through  the 
adoption  of  rules  and  regulations  as  to  the  manner  in  which  it 
shall  be  conducted,  and  not  by  the  municipality  itself  engaging  in 
the  business.14  The  business  of  selling  intoxicating  liquors  is  a 
proper  subject  of  police  regulation.15  Thus,  a  city  may  by  or- 
dinance prohibit  the  sale  of  liquors  and  wines  in  places  where 
musical  or  theatrical  entertainments  are  given  and  where  females 
attend  as  waitresses.16  So  it  may  provide  that  cider  shall  not  be 
sold  in  quantities  of  less  than  a  gallon,  or  drunk  on  the  prem- 
ises.17 A  wider  discretion  on  the  part  of  the  corporation  is  rec- 
ognized in  respect  to  exhibitions  and  amusements  than  in  the 

o  St.  Louis  v.  Fitz,  53  Mo.  582.  i*  Rippe  v.  Becker,  56  Minn.  100, 

10  Odell  v.  Atlanta,  97  Ga.  670,    22  L.  R.  A.  857. 

25  S.  E.  173.  is  Crowley  v.  Christensen,  137  U. 

11  Lowry  v.  Rainwater,  70  Mo.    S.  86.    A  general  authority  to  regu- 
152,  35  Am.  Rep.  420.  late  the  liquor  traffic  gives  author- 

izBarbier  v.  Connolly,  113  U.  S.  ity  to  exclude  it  altogether  from 

27 ;  Yick  Wo  v.  Hopkins,  118  U.  S.  residential    districts.      Greencastle 

356;  State  v.  Taft,  118  N.  C.  1190,  v.  Thompson,  168  Ind.  493,  81  N. 

23  S.  E.  970,  32  L.  R.  A.  122.  E.  497. 

is  McAlister  v.  Clark,  33  Conn.        ie  EX  parte  Hayes,  98  Cal.  555, 

91.  Contra,  as  to  the  owners  of  the  20  L.  R.  A.  701. 
premises  merely  permitting  use  for        IT  Monroe  v.  Lawrence,  44  Kan. 

prostitution.    State  v.  Webber,  107  607,    10    L.    R.    A.    520,    24    Pac. 

N.  C.  962,  12  S.  E.  598,  22  Am.  St.  1113. 
920. 


52 


PUBLIC   CORPORATIONS. 


[§49 


case  of  trades  and  useful  occupations ;  and  a  still  wider  discretion 
is  allowed  where  the  business  is  of  such  a  nature  as  to  be  liable  to 
degenerate  into  a  nuisance,  or  tend  to  promote  disorder  and 
crime.18 

§49.  The  preservation  of  health. — The  protection  of  the 
health  of  the  people  is  one  of  the  principal  purposes  for  which 
municipal  corporations  are  created,  and  every  presumption  will 
be  indulged  in  favor  of  an  ordinance  having  this  for  its  object.19 
The  instances  in  which  this  power  has  been  exercised  are  innum- 
erable. For  illustration,  a  municipality  may  regulate  slaughter- 
houses,20 the  burial  of  the  dead,21  the  cleaning  and  care  of  sinks 
and  cesspools,22  the  kind  and  quantity  of  certain  products,  such 
as  rice,  which  may  be  cultivated  within  the  corporation  limits,23 
the  sale  of  cigarettes.24  So  it  may  establish  quarantine  regula- 
tions,25 and  remove  persons  who  are  affected  by  a  contagious  dis- 
ease, or  who  have  been  exposed  to  the  same,  to  places  of  detention, 
and  prevent  communication  with  them.26 

A  city  may  divert  flowing  water  from  land  in  order  to  protect 


isMankato  v.  Fowler,  32  Minn. 
364. 

i»Gundling  v.  Chicago,  176  111. 
340,  52  N.  E.  44,  48  L.  R.  A.  230 ; 
Greensboro  v.  Ehrenreich,  80  Ala. 
579,  60  Am.  Rep.  130,  2  So.  725. 

20  Watertown  v.  Mayo,  109  Mass. 
315,  12  Am.  Rep.  694;  St.  Paul  v. 
Byrnes,  38  Minn.  176;  Huesing  v. 
Rock  Island,  128  111.  465,  21  N.  E. 
558,    15    Am.    St.    Rep.    129;    The 
Slaughter  House  Cases,  16  Wall. 
(U.  S.)   36;  Butchers  v.  Crescent 
City,  111  TJ.  S.  746,  28  L.  Ed.  585 ; 
Beiling  v.  Evansville,  144  Ind.  644, 
42  N.  E.  Rep.  621,  35  L.  R.  A.  272. 

21  Bogert  v.  Indianapolis,  13  Ind. 
134;  Coates  v.  Mayor,  7  Cow.   (N. 
Y.)  585;  Ex  parte  Bohen,  115  Cal. 
372,  36  L.  R.  A.  618,  47  Pac.  55. 

22  Nicoulin  v.  Lowery,  49  N.  J.  L. 
391,  8  Atl.  513;  Commonwealth  v. 
Cutter,  156  Mass.  52,  29  N.  E.  1146. 

23  Green  v.  Savannah,  6  Ga.  1 ; 
Summerville  v.  Pressley,  33  S.  C.  56. 


24  Gundling  v.  Chicago,  177  U.  S, 
183,  44  L.  Ed.  725. 

25  Railway  Co.  v.  Husen,  95  U.  S. 
465;  Train  v.  Boston  Disinfecting 
Co.,  144  Mass.  523,  11  N.  E.  929,  59 
Am.  Rep.  113 ;  Markham  v.  Brown, 
37  Ga.  277,  and  note  to  this  case, 
92  Am.  Dec.  76,  where  the  cases  are 
collected;  Thomas  v.  Mason,  39  W. 
Va.  526,  26  L.  R.  A.  727,  and  ex- 
tensive note  on  powers  and  liabili- 
ties of  municipalities  in  times  of 
epidemics;   Hurst  v.   Warner,   102 
Mich.  238,  60  N.  W.  440,  26  L.  R.  A. 
484,  and  note  on  quarantine  regu- 
lations by  health  authorities.    Par- 
ties dealing  in  second-hand  clothing 
may   be   required   to   disinfect   it. 
State  v.  Taft,  118  N.  C.  1190,  32  L. 
R.  A.  122. 

26  Harrison  v.  Baltimore,  1  Gill 
(Md.),  264;  Clinton  v.  Clinton  Co., 
61  Iowa,  205,  16  N.  W.  87 ;  Elliott 
v.  Kalkaska  Sup.,  58  Mich.  452,  55 
Am.  Rep.  706,  25  N.  W.  461. 


§  49]  POLICE  POWER.  53 

public  health,  but  not  to  supply  a  watering  trough.27  So  a  city 
may  provide  that  an  article  of  food,  such  as  milk,  which  does  not 
reach  a  prescribed  standard,28  or  trees  which  have  the  contagious 
disease  known  as  the  "yellows,"29  shall  be  destroyed  without 
compensation  to  the  owner.  Every  man  holds  his  property  under 
the  implied  obligation  that  it  shall  not  be  injurious  to  the  com- 
munity. "The  exercise  of  the  police  power,"  said  Mr.  Justice 
Harlan,  "by  the  destruction  of  property  which  is  itself  a  public 
nuisance,  or  the  prohibition  of  its  use  in  a  particular  way,  where- 
by its  value  becomes  depreciated,  is  very  different  from  taking 
property  for  public  use,  or  from  depriving  a  possessor  of  his 
property  without  due  process  of  law. ' '  30  An  ordinance  requiring 
venders  of  milk  to  furnish  gratuitously,  on  application  of  sani- 
tary inspectors,  samples  of  milk  not  exceeding  a  half  pint  for 
inspection  and  analysis,  is  within  the  exercise  of  the  general  power 
in  a  municipal  corporation  to  pass  ordinances  to  preserve  health.31 
Although  a  corporation  has  power  to  prevent  articles  of  merchan- 
dise or  other  things  which  have  been  used  by  persons  or  in  places 
infected  with  contagious  disease  from  being  brought  within  its 
limits,  establish  quarantine  and  reasonable  inspection  regulations, 
and  provide  for  disinfecting  and  destroying  the  germ  of  the  dis- 

27  Suffield  v.  Hathaway,  44  Conn,  well  as  without  any  compensation 
521.  to  the  owner  for  resulting  loss." 

28  Deems   v.   Baltimore,   80   Md.  State   v.    Wordin,    56   Conn.   216; 
164,  30  Atl.  648,  26  L.  R.  A.  541.  Powell  v.  Pennsylvania,  127  U.  S. 

29  State  v.  Main,  69  Conn.  123,  36  678. 

L.  R.  A.  623,  37  Atl.  80  (1897).  so  Mugler  v.  Kansas,  123  TJ.  S. 
Mr.  Justice  Baldwin  said :  "A  wide-  623,  31  L.  ed.  205 ;  Deems  v.  Balti- 
spread  apprehension  throughout  more,  80  Md.  164,  26  L.  R.  A.  541; 
the  community  justifies  itself,  and  Taunton  v.  Taylor,  116  Mass.  254; 
is  a  sufficient  basis  for  legislative  Brown  v.  Keener,  74  N.  C.  714.  Un- 
action  toward  the  removal  of  the  der  a  statutory  power  to  prohibit  or 
cause,  real  or  supposed,  of  the  dan-  regulate  offensive  trades,  a  local 
ger  apprehended,  where  this  cause  board  of  health  passed  an  order 
is  a  deadly  disease  of  a  food-pro-  which  prohibited  the  excavation, 
ducing  tree.  Bissell  v.  Davison,  without  a  permit,  of  clay  for  mak- 
65  Conn.  183,  191,  32  Atl.  348.  ing  bricks,  except  upon  land  owned 
The  destruction  of  the  infected  by  a  certain  brick  company.  Held, 
trees  by  order  of  a  public  official,  invalid  for  unreasonableness.  Bel- 
after  due  inspection,  is  a  remedy  mont  v.  New  England  Brick  Co.,  190 
which,  however  severe,  is  one  ap-  Mass.  442,  77  N.  E.  504. 
propriate  to  the  end  in  view,  and  si  state  v.  Dupaquier,  46  La.  Ann. 
may  properly  be  enforced  without  577,  26  L.  R.  A.  162,  15  So.  502,  49 
any  preliminary  judicial  inquiry,  as  Am.  St.  334. 


54  PUBLIC  CORPORATIONS.  [§  50 

ease  as  far  as  practicable,  it  can  go  no  further  than  is  necessary 
in  order  to  secure  protection.  Thus,  it  has  no  power  to  declare 
it  unlawful  to  sell  meat  or  other  food,  or  to  deal  in  second-hand 
or  cast-off  clothing.32  A  lawful  business,  not  in  itself  necessarily 
a  nuisance,  which  may  be  conducted  without  danger  to  the  com- 
munity when  properly  regulated,  cannot  be  prohibited.33 

§  50.  Nuisances. — Municipal  corporations  are  ordinarily 
given  power  to  abate  nuisances.  It  can  be  exercised  only  when 
the  act  or  thing  is  an  actual  nuisance,  and  its  abatement  required 
m  order  to  preserve  the  health  and  safety  of  the  community.34 
A  corporation  cannot  make  a  thing  a  nuisance  by  merely  saying 
that  it  is  one.35  "It  is  a  doctrine  not  to  be  tolerated  in  this 
country,"  said  Mr.  Justice  Miller,  "that  a  municipal  corporation 
without  any  general  laws,  either  of  the  city  or  of  the  state,  within 
which  a  given  structure  can  be  shown  to  be  a  nuisance,  can,  by 
its  mere  declaration  that  it  is  one,  subject  it  to  removal  by  any 
person  supposed  to  be  aggrieved,  or  even  by  the  city  itself.  This 
would  place  every  house,  every  business,  and  all  the  property  in 
the  city  at  the  uncontrolled  will  of  the  temporary  local  authori- 
ties."30 Ordinarily,  there  must  be  a  judicial  determination  of 

32  Greensboro  v.   Ehrenreich,   SO  113  Ga.  537,  38  S.  E.  996,  54  L.  R. 

Ala.  579,  60  Am.  Rep.  130.  A.  294.    Power  expressly  conferred 

ss  State  v.  Taft,  118  N.  C.  1190,  upon  a  city  by  statute  to  "declare 

23  S.  E.  970,  32  L.  R.  A.  122.  what  shall  be  a  nuisance"  does  not 

s*  Ex   parte    Robinson,    30    Tex.  give  power  to  declare  a  thing  to  be 

App.  493,  17  S.  W.  1057.     See  note  a  nuisance  which  is  not  one  by  na- 

38  L.  R.  A.  305,  where  the  cases  ture,  even  though  it  might  under 

are  collected.  certain  circumstances  become  one. 

ss  Des  Plaines  v.  Poyer,  123  111.  See  also  cases  on  the  validity  of 

348,  14  N.  E.  677,  5  Am.  St.  Rep.  ordinances  against  bill-boards.   Pas- 

524.    Ex  parte  O'Leary,  65  Miss.  80,  saic  v.  Paterson  Bill  Posting  Co., 

7  Am.  St.  Rep.  640 ;  Tissot  v.  Great  72  N.  J.  L.  285 ;  Chicago  v.  Gunning 

South.  Tel.  Co.,  39  La.  Ann.  996,  4  System,    214    111.    628;    compare, 

Am.  St.  Rep.  248 ;  State  v.  Mott,  61  Rochester  v.  West,  164  N.  Y.  510. 
Md.  297,  48  Am.  Rep.  105 ;  Cole  v.        36  Yates  v.  Milwaukee,  10  Wall. 

Kegler,  64  Iowa,  59;  Grossman  v.  (U.   S.)   497,  19  L.  ed.  984.     See, 

Oakland,  30  Oregon,  478,  41  Pac.  5,  also,  St.  Paul  v.  Gilfillan,  36  Minn. 

60  Am.  St.  832,  36  L.  R.  A.  593  (and  298 ;  (a  legislature  may  define  nui- 

note  on  power  of  municipal  corpo-  sances)    Dingley    v.    Boston,    100 

ration  to  define,  prevent  and  abate  Mass.  544 ;  Cole  v.  Kegler,  64  Iowa, 

nuisances)  ;  Ex  parte  Wygant,  39  59 ;  Everett  v.  Marquette,  53  Mich. 

Oregon,  429,  64  Pac.  867,  54  L.  R.  A.  450.     A  legislature  cannot  declare 

636 ;  Western  etc.  R.  Co.  v.  Atlanta,  that  to  be  a  nuisance  which  is  not 


§51] 


POLICE  POWER. 


55 


the  fact  that  the  thing  complained  of  is  a  nuisance,  although  the 
state  may  confer  upon  the  municipality  the  power  to  abate  nui- 
sances summarily  without  formal  legal  proceedings.37  The  rem- 
edy must  not  be  more  stringent  than  the  necessities  of  the  case 
require.  Thus,  where  the  nuisance  consists  in  the  improper  use 
of  a  building,  a  city  cannot  legally  cause  the  building  to  be  de- 
stroyed.38 What  constitutes  a  nuisance  must  depend  upon  the 
particular  circumstances  of  the  case.  Thus,  a  structure  or  act 
may  be  a  nuisance  in  a  certain  locality  and  not  so  in  another. 
This  is  true  of  smoke,  ringing  of  bells,  blacksmith  shop,  sawing 
of  marble,  blasting  of  rocks,  and  the  noise  of  a  circus.39  The 
ordinary  remedy  for  the  abatement  of  a  nuisance  is  by  indict- 
ment, although  the  municipality  is  also  entitled  to  proceed  by 
way  of  injunction  in  certain  cases.40 

§  51.    Regulation  of  wharves. — A  city  may,  under  the  police 
power,  require  that  certain  wharves  and  waters  shall  be  used  by 


one  in  fact,  if,  by  so  doing,  it  in- 
fringes upon  constitutional  rights. 
Grand  Rapids  v.  Powers,  89  Mich. 
94,  50  N.  W.  661,  14  L.  R.  A.  498. 
"An  ordinance  cannot  transform 
into  a  nuisance  an  act  or  thing  not 
treated  as  such  by  the  statutory  or 
common  law."  Grossman  v.  Oak- 
land, supra.  In  this  case  an  ordi- 
nance absolutely  prohibiting  a  rail- 
road company  from  inclosing  its 
track  in  the  platted  portions  of  the 
city,  and  providing  that  such  in- 
closure  should  be  a  nuisance,  was 
held  invalid,  although  the  charter 
conferred  power  .to  declare  what 
shall  constitute  a  nuisance. 

37  Baumgartner  v.  Hasty,  100  Ind. 
575,  50  Am.  R.  830 ;  King  v.  Daven- 
port, 98  111.  305. 

ss  Czarnieck's  Appeal  (Pa.  St.), 
11  Atl.  660;  Shepard  v.  People,  40 
Mich.  487. 

39  Harmon  v.  Chicago,  110  111. 
400 ;  St.  Paul  v.  Gilflllan,  36  Minn. 
298,  31  N.  W.  49 ;  Davis  v.  Sawyer, 
133  Mass.  289;  Leete  v.  Pilgrim 
Church,  14  Mo.  App.  590;  Bowen  v. 


Mauzy,  117  Ind.  258;  McKeon  v. 
See,  51  N.  Y.  300 ;  Hunter  v.  Farren, 
127  Mass.  481;  Inchbald  v.  Robin- 
son, L.  R.  4  Ch.  App.  388.  The  fact 
that  the  conditions  constituting  a 
nuisance  are  not  the  same  at  all 
times  and  places,  and  that  esthetic 
ideas  must  sometimes  be  sacrificed 
to  the  demands  of  commerce,  is  thus 
expressed  by  Lord  Justice  James 
in  Salvin  v.  North  Brancepeth  Coal 
Co.,  L.  R.  9  Ch.  App.  705 :  "If  some 
picturesque  haven  opens  its  arms  to 
invite  the  commerce  of  the  world, 
it  is  not  for  this  court  to  forbid 
the  embrace,  although  the  fruit  of 
it  should  be  the  sights  and  sounds 
and  smells  of  a  common  seaport 
and  shipbuilding  town,  which  would 
drive  the  Dryads  and  their  mas- 
ters from  their  ancient  solitudes." 
40  State  v.  Anwerda,  40  Iowa, 
151 ;  Ottumwa  v.  Chinn,  75  Iowa, 
405 ;  Newark  Aqueduct  Board  v. 
Passaic,  45  N.  J.  Eq.  393;  Stearns 
Co.  v.  St.  Cloud  etc.  Co.,  36  Minn. 
425. 


56 


PUBLIC  CORPORATIONS. 


[§52 


certain  classes  of  boats  only.  Such  regulations  do  not  deprive 
the  owners  of  the  wharves  of  their  property  without  due  process 
of  law.  They  are  valid  because  rendering  more  convenient  and 
safe  the  transaction  of  business  in  the  harbor.41 

§  52.  Licenses. — Power  to  license  occupations  and  amuse- 
ments must  be  conferred  expressly  or  by  necessary  inference,  or 
it  cannot  be  exercised  by  a  municipal  corporation.42  A  license 
may  be  imposed  either  as  a  tax  or  as  a  police  regulation.43  When 
imposed  as  a  tax,  its  validity  is  determined  by  the  principles 
governing  taxation.  When  imposed  as  a  police  regulation,  it 
must  be  for  the  purpose  of  preventing  some  threatened  evil,  and 
must  not  exceed  in  amount  a  sum  sufficient  to  cover  the  expenses 
of  issuing  the  license  and  the  expense  of  police  supervision.44 
It  may  be  required  ' '  for  the  purpose  of  insuring  the  proper  police 
supervision,  whenever  the  character  of  the  trade  or  business  is 


4iCushing  v.  The  John  Frazer, 
21  How.  (U.  S.)  184,  16  L.  ed.  106; 
Backus  v.  Detroit,  49  Mich.  110,  43 
Am.  Rep.  447,  where  the  right  of  a 
city  to  establish  a  public  wharf 
without  regard  to  the  question 
whether  a  riparian  owner  has  title 
to  the  land  under  water  is  fully 
discussed. 

42  State  v.  Itzkovitch,  49  La.  Ann. 
366,  21  So.  544. 

43  Banta  v.  Chicago,  172  111.  204, 
50  N.  E.  233 ;  Ex  parte  Mirande,  73 
Cal.  365,  14  Pac.  888. 

44  Mankato  v.  Fowler,  32  Minn. 
364 ;  Von  Baalen  v.  People,  40  Mich. 
258,  36  Am.  Rep.  522,  and  authori- 
ties cited  in  note.    But  see  Kinsley 
v.  Chicago,  124  111.  359,  19  N.  E. 
260.    In  Tomlinson  v.  Indianapolis, 
144  Ind.  142,  36  L.  R.  A.  413,  the 
court  said :   "The  only  contention, 
in   truth,   which   can  be  plausibly 
urged  against  the  ordinance  is  that 
it  charges  those  who  drive  upon  the 
streets,   but   live  outside  the  city 
limits,  the  same  license  fees  charged 
against  those  who  reside  within  the 
city;  and  we  do  not  think  that  the 
ordinance  can,  for  this  reason,  be 


held  invalid.  The  Common  Coun- 
cil, as  we  have  seen,  is  given  by 
the  statute  power  to  pass  ordi- 
nances 'to  regulate  the  use  of 
streets  and  alleys  by  vehicles.' 
This  provision  would  of  itself  be 
sufficient  authority  to  sustain  the 
ordinance.  The  power  to  regulate 
implies  the  power  to  license  and  to 
exact  a  reasonable  fee  for  such 
license.  But  the  statute  further  ex- 
pressly provides  that  the  council 
may  pass  ordinances  'to  license, 
tax  and  regulate  wheeled  vehicles.' 
This  is  a  police  power  and  not  a 
taxing  power.  Indianapolis  v.  Biel- 
er,  138  Ind.  30.  The  fee  charged  is 
but  $3  per  year.  Nor  is  it  any  ob- 
jection to  this  conclusion  that  some 
revenue  arises  to  the  city  from  the 
fees  collected,  or  that  such  revenue 
is  applied  to  the  repair  of  the 
streets.  The  streets  are  used,  and 
in  part  worn  out,  and  put  in  a  con- 
dition needing  repair,  by  the  ve- 
hicles that  are  charged  the  license 
fee.  See  Rochester  v.  Upham,  19 
Minn.  108  (Gil.  78) ;  State  v.  Cas- 
sidy,  22  Minn.  321,  21  Am.  Rep. 
765." 


§  52]  POLICE  POWER.  57 

such  that  the  absence  of  police  supervision  would  occasion  injury 
to  the  public  dealing  with  those  engaged  therein,  either  because 
the  trade  requires  a  certain  degree  of  skill  and  professional  quali- 
fication, or  because  it  furnishes  abundant  opportunities  for  the 
perpetration  of  fraud,  which  without  police  supervision,  would 
very  likely  prove  successful. "  45  As  stated  by  Mr.  Justice  Mitch- 
ell,46 ' '  It  is  undoubtedly  the  law  that  the  right  to  license  must  be 
plainly  conferred  or  it  will  be  held  not  to  exist.  The  power  to 
make  by-laws  relative  to  specified  lawful  occupations,  or  the  gen- 
eral power  to  pass  prudential  by-laws  in  reference  to  them,  would 
not  as  a  general  rule  authorize  the  municipal  corporation  to  exact 
a  license  from  those  carrying  on  such  business.  But  in  view  of 
the  very  important  bearing  which  the  scavenger  business  has 
upon  the  public  health,  and  the  imperative  necessity,  from  sani- 
tary considerations,  that  such  work  should  be  intrusted  only  to 
those  who  are  competent  and  properly  equipped  to  perform  it,  we 
are  of  opinion  that  the  grant  of  power  to  make  such  regulations 
and  to  ordain  such  ordinances  as  may  be  necessary  and  expedient 
for  the  preservation  of  health  and  to  prevent  the  introduction  of 
contagious  diseases,  conferred  authority  on  the  common  council, 
as  one  means  of  regulating  the  scavenger  business,  to  require  a 
license  from  those  carrying  it  on  and  to  prohibit  any  one  from 
doing  so  without  a  license. ' '  47 

The  power  to  tax  is  distinct  from  the  police  power.  Its  pur- 
pose is  revenue,  while  police  power  is  for  the  purpose  of  regu- 
lation. Thus,  a  license  charge  imposed  on  hackmen  of  forty 
dollars  per  year  is  clearly  intended  for  the  purpose  of  raising 
revenue,  and  not  for  the  purpose  of  regulation,  and  hence  can- 
not be  sustained  under  the  police  power.48  But  an  annual  license 
fee  of  eight  dollars,  and  the  cost  of  numbering  the  hack,  not  ex- 


*e  Tiedeman,  Limitations  on  Po-  strain  hawking  and  peddling,"  a 

lice  Power,  §  101.  city  may  require  a   license  from 

46  State  v.   McMahon,   69  Minn,  peddlers.     South  Bend  v.  Martin, 

265,  72  N.  W.  79  (1897)  ;  Ex  parte  142  Ind.  31,  29  L.  L.  A.  531.     Au- 

Garza,  28  Tex.  App.  381,  19  Am.  thority    to    regulate    pawnbrokers 

St.  845.  gives  power  to  exact  license  fees 

4T  Boehm   v.   Baltimore,   61  Md.  from  them.    Grand  Rapids  v.  Brau- 

259;   Chicago  etc.  Co.  v.  Chicago,  dy,  105  Mich.  670,  64  N.  W.  29,  32 

88  111.  221 ;  Kinsley  v.  Chicago,  124  L.  R.  A.  116,  and  see  note. 
111.    359,    19    N.    E.    260.     Under        « Jackson  v.  Newman,  59  Miss, 

a  statute  authorizing  a  city  "to  re-  385,  42  Am.  Rep.  367. 


58  PUBLIC   CORPORATIONS.  [§  53 

ceeding  twenty-five  cents,  is  valid  as  a  police  regulation.49  Under 
the  police  power  a  municipal  corporation  may,  under  proper  au- 
thority, require  a  license  from  peddlers,  hackmen,  draymen,  om- 
nibus drivers,  retail  liquor  dealers,  showmen,  green  grocers,  bil- 
liard saloons,  pawnbrokers,  milk  dealers,  livery-stable  keepers, 
plumbers,  bakers  and  auctioneers.50  An  ordinance  providing  for 
a  peddler's  license  which  discriminates  against  non-residents  and 
goods  not  manufactured  within  the  municipality  is  void  as  an 
attempt  to  regulate  commerce.51  Power  to  license  and  regulate 
saloons  will  not  authorize  an  ordinance  forbidding  the  use  of 
door  screens  and  window  blinds  in  the  windows  and  openings  of 
a  saloon.  Such  an  ordinance  to  be  reasonable  must  be  confined 
in  its  operations  to  such  times  as  the  saloon  is  not  allowed  to  do 
business,  as  on  Sundays  and  holidays.52  A  city  may  be  authorized 
to  require  a  license  for  the  use  of  the  streets  by  vehicles  without 
reference  to  their  business.53  So  it  may  require  a  license  from 
those  engaged  in  a  business  which  requires  them  to  go  from  a 
place  outside  of  the  city  to  a  place  within  the  city,  such  as  a 
stage  or  dray  line,54  but  not  when  the  coming  to  the  city  is  only 
occasional.55 

§  53.  Markets. — The  state  commonly  delegates  to  municipal 
corporations  power  to  establish  and  regulate  markets.  This  power 
is  of  a  police  nature  and  is  designed  to  protect  the  health  and 

49  Ex  parte  Gregory,  20  Tex.  App.  GI  Welton  v.  Missouri,  91  U.  S. 

210,  54  Am.  Rep.  516.  275,  23  L.  ed.  347 ;  Marshalltown  v. 

BO  Schumann  v.  Ft.  Wayne,  127  Bloom.  43  Am.  Rep.  116,  58  Iowa, 
Ind.  109,  11  L.  R.  A.  378;  Chicago  184.      See    State   v.    Wheelock,   95 
v.   Bartee,   100   111.   57 ;   People  v.  Iowa,  577,  30  L.  R.  A.  429. 
Wagner,  86  Mich.  594 ;  State  v.  Cas-  62  Champer    v.    Greencastle,    138 
sidy,  22  Minn.  312,  21  Am.  Rep.  765.  Ind.  339.   Statutes  having  the  same 
See  State  Centre  v.  Barenstein,  66  object  as  the  above  ordinance  have 
Iowa,  249;  St.  Paul  v.  Traeger,  25  been   considered   valid.    Comm.   v. 
Minn.    248;    Barling    v.    West,    29  Casey,   134   Mass.   194;   Comm.   v. 
Wis.  307,  9  Am.  R.  576.    For  a  col-  Brothers,  158  Mass.  200. 
lection  of  cases  and  illustrations  of  53  Tomlinson  v.  Indianapolis,  144 
ordinances    imposing   license   fees,  Ind.  142.     See  cases  collected  in  a 
see  State  v.  French,  17  Mont.  54,  30  note  to  this  case  in  36  L.  R.  A.  413. 
L.  R.  A.  415,  and  note.    As  to  the  5*  Sacramento  v.  California  Stage 
reasonableness    of    ordinances    of  Co.,  12  Cal.  134. 
that  character,  see  §  157,  and  also  ss  East  St.  Louis  v.  Bux,  43  111. 
English  and  American  notes  to  the  App.  276.    See  Gary  v.  North  Plain- 
case  of  John  v.  Mayor  of  Congdon,  field,  49  N.  J.  L.  110. 
7  Eng.  Rul.  Cas.  278. 


§  53]  POLICE  POWER.  59 

well-being  of  the  community.  A  market ' '  is  a  designated  place  in 
a  town  or  city  to  which  all  persons  can  repair  who  wish  to  buy 
or  sell  articles  there  exposed  for  sale.  They  have  been  found 
to  be  a  public  convenience  when  properly  regulated.  Such  regu- 
lations as  the  city  authorities  may  adopt  in  regard  to  them  should 
have  and  generally  have  reference  to  the  preservation  of  peace 
and  good  order  and  the  health  of  the  city.  They  should  be  of  a 
police  and  sanitary  character,  and  an  attempt  by  color  of  regu- 
lations to  restrain  trade  is  an  abuse  of  the  power. ' ' 56  The  mar- 
ket may  be  placed  under  the  general  supervision  of  the  police  or 
of  an  officer  specially  appointed  for  that  purpose.  Those  enjoy- 
ing market  privileges  may  be  required  to  pay  a  license  therefor.37 
Under  power  to  establish  and  regulate  markets,  a  city  may  pro- 
hibit the  sale  of  certain  articles,  such  as  oysters  or  beef,  at  any 
place  other  than  the  market  during  market  hours.58  But  the 
authority  to  prohibit  the  "sale  of  vegetables  during  market 
hours"  will  not  authorize  the  prohibition  of  such  sales  at  other 
times.59  Power  to  establish  and  regulate  markets  carries  with  it 
power  to  purchase  a  site  and  erect  the  necessary  buildings  there- 
on.60 Such  power  will  not  authorize  the  construction  of  a  mar- 
ket building  in  a  public  street.61  But  when  a  city  establishes  a 
market  in  a  portion  of  a  public  street  duly  condemned  for  that 
purpose,  the  owners  of  abutting  property  have  no  right  of  action 
against  the  city  for  damages  caused  thereby.62  An  ordinance 
which  deprive  the  producers  of  market  articles  of  their  own  rais- 

«8  Caldwell  v.  City  of  Alton,  33  legislature  could  not  constitutional- 
Ill.  416,  85  Am.  Dec.  282,  and  note  ly  confer  power  upon  a  city  to  for- 
citing  many  cases.  See,  also,  Wart-  bid  all  sales  of  marketable  commod- 
man  v.  City  of  Philadelphia,  33  Pa.  ities  outside  of  the  market-place 
St.  202 ;  New  Orleans  v.  Stafford,  without  regard  to  time. 
27  La.  Ann.  417,  21  Am.  Rep.  563 ;  ™  State  v.  St.  Paul,  32  Minn.  329. 
Robinson  v.  Mayor  of  Franklin,  1  The  authorities  upon  this  point  are 
Humph.  156,  34  Am.  Dec.  625,  note ;  conflicting.  See  note  to  Robinson  v. 
Bethune  v.  Hughes,  28  Ga.  560,  73  Franklin,  34  Am.  Dec.  638,  1 
Am.  Dec.  789,  and  note  on  page  793.  Humph.  156. 

57  Cincinnati  v.  Buckingham,  10  «o  Caldwell  v.  City  of  Alton,  33 

Ohio,  257.  111.  416. 

es  Ex  parte  Canto,  21  Tex.  App.  ei  Wartman  v.   Philadelphia,  33 

61,  57  Am.  Rep.  609 ;  Newson  v.  Gal-  Pa.  St.  202 ;  State  v.  Mayor,  5  Port, 

veston,  76  Tex.  559,  13  S.  W.  368,  (Ala.)  279;  St.  John  v.  Mayor,  3 

7  L.  R.  A.  797;  Henry  v.  Mayor  of  Bosw.  (N.  Y.)  483. 

Macon,  91  Ga.  268,  18  S.  E.  143.  In  ez  Henkel  v.  City  of  Detroit,  49 

this  case  the  court  decided  that  the  Mich.  249,  43  Am.  Rep.  464. 


60  PUBLIC   CORPORATIONS.  [  §  54 

ing  from  selling  their  produce  at  first  hand  to  consumers  in  the 
principal  city  market,  and  compels  them  to  be  sold  by  holders  of 
stalls  at  second  hand,  is  void.63 

§  54.  Prevention  of  fires. — A  municipal  corporation  may,  in 
the  exercise  of  its  power  to  protect  the  lives  and  property  of 
its  citizens,  take  all  reasonable  measures  to  prevent  the  rise  and 
spread  of  conflagrations.  It  may  prescribe  fire  limits  and  pro- 
hibit the  construction  of  wooden  buildings  within  such  limits. 
When  it  has  enacted  such  a  prohibition,  it  may,  without  judicial 
proceedings,  destroy  a  building  erected  in  violation  thereof.  The 
power  to  enact  ordinances  of  this  class  for  the  prevention  of  fires 
has  been  held  to  be  included  in  the  general  police  power  of  a 
municipality ; 64  but  it  is  usually  conferred  in  express  terms.65 
The  municipality  may  legally  forbid  the  erection  of  a  wooden 
building  within  the  fire  limits,  although  the  contract  for  its  con- 
struction was  made  before  the  ordinance  determining  the  limits 
was  enacted.66  Under  the  pressure  of  a  controlling  public  neces- 
sity, even  "where  the  owners  themselves  have  fully  observed  all 
their  duties  to  their  fellows  and  to  the  state,"  private  property 
may  be  taken  and  destroyed  when  necessary  to  prevent  the  spread 
of  fire,  "the  ravages  of  pestilence,  the  advance  of  a  hostile  army, 
or  any  other  great  public  calamity. ' ' 67 

es  "A  city  has  no  right,  and  the  St.  368 ;  Pye  v.  Peterson,  45  Tex.  312. 
city  has  never  been  empowered,  to  66  Knoxville  v.  Bird,  12  Lea 
shut  out  the  producers  of  fresh  pro-  (Tenn.),  121. 
visions  and  similar  farm  and  gar-  67  Cooley,  Const.  Lim.  (7th  ed. ) 
den  articles  from  having  conven-  878;  Saltpetre  Case,  12  Coke,  12; 
ient  access  to  customers."  Hughes  Meeker  v.  Van  Renselaer,  15  Wend, 
v.  Recorder's  Court  of  Detroit,  75  397;  McDonald  v.  Red  Wing,  13 
Mich.  574,  4  L.  R.  A.  863.  Minn.  38,  Gil.  25;  Jones  v.  Rich- 
6*  See  Baumgartner  v.  Hasty,  100  mond,  18  Gratt,  517.  This  case  was 
Ind.  575.  disapproved  in  Wallace  v.  Rich- 
es Eichenlaub  v.  St  Joseph,  113  mond,  94  Va.  204,  26  S.  E.  586,  36 
Mo.  395,  18  L.  R.  A.  590;  King  v.  L.  R.  A.  554.  It  held  that  it  was 
Davenport,  98  111.  305,  38  Am.  Rep.  proper  for  the  municipal  authori- 
89;  Charleston  v.  Reed,  27  W.  Va.  ties  of  Richmond,  anticipating  the 
681,  55  Am.  Rep.  336;  Klingler  v.  capture  of  the  city,  to  take  posses- 
Bickel,  117  Pa.  St.  326 ;  Ford  v.  sion  of  and  destroy  all  liquor  in  the 
Thralkill,  84  Ga.  169,  10  S.  E.  600.  city.  If  damaged  grain  stored 
Some  courts  hold  that  the  power  within  the  limits  of  a  city  be  found 
must  be  expressly  conferred.  See  detrimental  to  the  public  health  it 
Des  Moines  v.  Gilchrist,  67  Iowa  may  be  destroyed.  Dunbar  v.  Au* 
210;Kneedlerv.Morristown,  lOOPa.  gusta,  90  Ga.  390. 


§  55]  POLICE  POWER.  61 

A  municipal  corporation  which  has  a  general  authority  to  pass 
police  ordinances,  or  to  make  orders  and  regulations  for  public 
safety,  may  maintain  fire  engines,  and  a  fire  department.88 

§  55.  Care  of  the  indigent  and  infirm. — The  care  of  the  in- 
digent and  the  infirm  in  body,  mind  and  morals  is  a  duty  which 
may  properly  be  imposed  upon  a  public  corporation.  The  in- 
sane, the  criminal  and  the  pauper  constitute  a  charge  upon  the 
community,  and  the  expenses  of  their  care  may  be  met  by  taxa- 
tion. Schools,  almshouses  and  hospitals,  when  under  the  control 
of  the  public  and  open  to  all  of  a  given  class  who  need  aid,  are 
public  institutions.  But  the  power  of  taxation  cannot  be  em- 
ployed to  support  such  institutions  when  they  are  under  the  con- 
trol of  private  persons  who  are  not  accountable  to  the  govern- 
ment.69 These  general  principles  have  been  recently  discussed 
in  connection  with  cases  growing  out  of  the  movement  for  the 
care  and  treatment  of  habitual  drunkards.  The  decisions  have 
not  been  uniform,  but  the  rule  will  probably  be  established  that 
the  public  money  may  legally  be  used  for  this  purpose.  It  was 
held  in  Maryland  that  an  act  authorizing  the  sending  of  any 
habitual  drunkard  for  treatment  to  any  institution  within  the 
state  at  the  expense  of  the  county  or  city,  if  neither  the  patient 
nor  the  petitioning  kinsmen  are  financially  able  to  pay  the  ex- 
penses, is  valid.70  The  court  said:  "There  can  be  no  doubt  as 
to  the  power  of  the  legislature  to  require  the  payment  by  the 
city  of  a  sum  requisite  to  defray  the  expense  of  maintenance  and 
medical  treatment  of  an  habitual  drunkard  residing  within  the 
corporate  limits."  The  decision  seems  to  regard  the  act  as  a 
proper  exercise  of  the  police  power.  The  same  principle  appears 
to  be  recognized  in  Colorado,  although  the  decision  turned  upon 
questions  of  construction.  It  was  there  held  that  the  treatment 
of  inebriates  by  a  private  corporation  at  the  expense  of  a  county 
is  not  the  performance  of  a  municipal  function,  and  that  such 
an  appropriation  of  the  county  funds  is  not  an  appropriation  of 

es  Baumgartner    v.    Hasty,    100  6»  Hare,  Am.   Const.  Law,  I.  p. 

Ind.  675;  Bluffton  v.  Studebaker,  284. 

106  Ind.  129 ;  Allen  v.  Taunton,  19  ™  Baltimore  v.   Keeley   Inst.  of 

Pick.  485;  Green  v.  Cape  May,  41  Maryland,  81  Md.  106,  27  L.  R.  A. 

N.  J.  L.  45.  646. 


62  PUBLIC   CORPORATIONS.  [§  55 

state  moneys  within  the  meaning  of  the  constitution.71  In  Wis- 
consin a  statute  providing  for  the  commitment  of  habitual  drunk- 
ards who  have  not  the  means  to  pay  for  treatment  to  some  in- 
stitution within  the  state  to  be  designated  in  the  order,  "pro- 
vided that  the  expense  of  treatment  in  each  case  shall  not  exceed 
the  sum  of  one  hundred  and  thirty  dollars,  which  sum  shall  cover 
and  include  all  expenses  for  treatment,  medicines  and  board  for 
four  weeks,  and  such  expense  shall  be  paid  by  the  county,"  was 
held  not  within  the  police  power  of  the  state  and  hence  uncon- 
stitutional, because  requiring  the  county  to  expend  the  proceeds 
of  taxation  for  a  private  purpose.  The  beneficiaries  were  not 
' '  poor ' '  in  the  technical  sense  of  the  word, — destitute,  in  extreme 
want  or  helplessness.  They  were  not  the  subjects  of  public  char- 
ity, nor  afflicted  with  a  contagious  or  infectious  disease.  "The 
question  recurs,"  says  Chief  Justice  Cassoday,  "whether  any 
county  may  be  compelled  to  pay  any  private  party  for  treat- 
ment, medicines  and  board  of  any  resident  therein,  having  a 
disease  not  contagious  or  infectious,  merely  because  such  diseased 
person  'has  not  the  means  to  pay  for  such  treatment.'  If  a 
county  may  be  compelled  to  make  such  payment  for  such  treat- 
ment, medicine  and  board  of  a  person  having  such  a  disease,  then 
it  logically  follows  that  every  county  may  be  compelled  to  pay 
private  parties  for  treatment,  medicines  and  board  of  any  person 
having  any  disease,  though  not  contagious  or  infectious,  provided 
the  victim  has  not  the  present  means  of  making  such  payment 
himself.  We  are  clearly  of  the  opinion  that  no  such  power 
exists."72 

71  Re  House,  23  Colo.  87,  33  L.  R.  be  inferred  that  the  act  would  !iave 

A.   832.     The   case   of   Senate  of  been  sustained  on  general  princi- 

Happy  Home  Clubs  v.  Alpena  Coun-  pies. 

ty,  99  Mich.  117,  23  L.  R.  A.  144,        72  Wisconsin  Keeley  Inst.  Co.  v. 

declares  the  Michigan  "Jag  Law"  Milwaukee  County,  95  Wis.  153,  36 

unconstitutional.      In    Foreman    v.  L.  R.  A.  55.    See  a  criticism  of  this 

Hennepin  Co.,  64  Minn.  371,  67  N.  case  in  31  Am.  Law  Rev.  616.  Com- 

W.     207     (1896),     the    act     was  pare  Baltimore  v.  Keeley  Institute 

held  invalid  because  attempting  to  of  Maryland,  81  Md.  106,  27  L.  R. 

make   an   improper   delegation   of  A.  647,  where  a  similar  act  was  held 

authority.    But  it  may  reasonably  valid. 


CHAPTER  VI. 


JUDICIAL  POWER. 


56.  Power  to  establish  courts. 
56a.  Jurisdiction. 


§  57.  Qualifications   of  judges  and 

jurors. 
58.  Procedure — Jury  trial. 


§  56.  Power  to  establish  courts. — By  the  common  law,  mu- 
nicipal corporations  have  power  to  establish  courts  for  the  pur- 
pose of  determining  controversies  of  limited  and  local  importance. 
The  early  charters  ' '  contained  grants  of  courts  of  various  degrees 
and  importance ;  the  mayor  and  aldermen  were  in  some  instances 
made  magistrates  ex  officio  and  authorized  to  hold  courts  of  quar- 
ter sessions,  and  these  grants  were  accompanied  or  not,  as  the 
case  might  be,  by  a  clause  called  the  'non-intromittant'  clause, 
which  ousted  the  jurisdiction  of  the  county  magistrates.  In  some 
cases  towns  were  made  counties  by  themselves;  in  some  cases 
there  was  no  limitation  at  all  upon  the  extent  of  the  town  juris- 
diction ;  they  might  try  all  crimes  and  inflict  any  punishment  up 
to  death;  in  other  cases  they  were  confined  within  narrower 
limits."1 

The  grant  of  power  to  hold  a  court  imposes  a  duty  upon  the 
municipality.2  In  the  United  States  these  courts  are  known  by 
various  names,  such  as  municipal,  mayor's,  recorder's  and  police 
courts.  Their  creation  and  jurisdiction  rest  with  the  legislature, 
which  may  modify  and  change  their  jurisdiction  at  will.3  The 
legislature  must,  of  course,  act  in  accordance  with  constitutional 
provisions.  When  the  constitution  confers  upon  the  legislature 
authority  to  create  "other  courts"  than  those  named  in  the  con- 
stitution, it  may  erect  municipal  courts  for  the  trial  of  offenses 
against  municipal  ordinances  and  confer  upon  them  the  general 
powers  of  justices  of  the  peace  within  the  limits  of  the  munici- 
pality.4 


1  Stephens,  Hist.  Crim.  Law  of 
Eng.,  I,  p.  116. 

2  Rex   v.   Mayor  of   Hastings,   5 
Barn.  &  Aid.  692. 

3  Boyd  v.  Chambers,  78  Ky.  140. 

4  State  v.  Young,  30  Kan.  445 ; 


Shafer  v.  Muma,  17  Md.  331.  See 
Fawcett  v.  Pritchard,  14  Wash.  604. 
A  municipal  court  cannot  sit  out- 
side of  the  corporation  limits.  Her- 
schoff  v.  Beverly,  43  N.  J.  L.  139. 


63 


64  PUBLIC   CORPORATIONS.  [§56 

§  56a.  Jurisdiction. — The  jurisdiction  of  municipal  courts 
ordinarily  extends  to  the  enforcement  of  municipal  ordinances 
and  the  recovery  of  penalties  for  a  breach  thereof  and  to  con- 
troversies between  individuals  when  the  amount  involved  does  not 
exceed  a  specified  amount.5  They  are  often  empowered  to  de- 
termine civil  suits  where  the  amount  involved  does  not  exceed 
five  hundred  dollars,  and  when  title  to  land  is  not  involved.  As 
a  rule  they  have  no  equity  jurisdiction.  In  some  instances,  how- 
ever, the  jurisdiction  of  city  courts  is  by  statute  made  as  extensive 
as  that  of  the  district  and  circuit  courts.6  When  the  jurisdic- 
tion is  not  co-extensive  with  the  limits  of  a  municipality,  the 
court  is  not  properly  a  municipal  court.  But  the  fact  that  it 
is  called  by  that  name  is  not  material  when  the  constitution  au- 
thorizes the  creation  of  inferior  courts,  and  the  court  created 
comes  within  this  designation.7 

§  57.  Qualifications  of  judges  and  jurors. — The  common- 
law  rule  that  the  municipality  cannot  be  a  suitor  in  its  own  court 
and  that  a  member  of  the  corporation  cannot  sit  as  judge  or 
juror  in  a  suit  in  which  the  corporation  is  interested  8  is  not  en- 
forced in  the  United  States.  It  is  considered  that  the  interest 
which  each  citizen  has  in  the  result  of  such  litigation  is  too  in- 
considerable to  give  rise  to  any  prejudice.9 


5  Fox  v.   Ellison,  43  Minn.  41 ;  »  City  Council  v.  Pepper,  1  Rich. 

Henderson  v.  Davis,  106  N.  C.  88;  (S.    C.)    364;    State   v.   Wells,   46 

People  v.  Lawrence,  82  Cal.  182 ;  Iowa,  662 ;  Montezuma  v.  Minor,  73 

State    v.    Wright,    80    Wis.    648;  Ga.  484.     But  see  Omaha  v.  Olm- 

Brown  v.  Jerome,  102  111.  371.  stead,  5  Neb.  446 ;  Kemper  v.  Louis- 

«  Bledsoe  v.  Gary,  95  Ala.  70,  10  ville,  14  Bush,  87.  It  is  held  that 
So.  502.  As  to  jurisdiction  in  in  an  action  in  a  state  court  to 
cases  of  violation  of  game  laws,  see  which  a  municipal  corporation  is  a 
State  v.  Synott,  89  Me.  41 ;  has-  party,  a  taxpayer  of  the  corpora- 
tardy,  Williams  v.  State,  112  Ala.  tion  cannot  serve  as  a  juror  unless 
688;  forcible  entry  and  unlawful  his  common-law  liability  has  been 
detainer,  Suchaneck  v.  State,  45  expressly  or  impliedly  removed  by 
Minn.  26.  statute.  Dively  v.  Elmira,  51  N.  Y. 

T  Shaffel  v.   State,  97  Wis.  377,  506 ;  Boston  v.  Baldwin,  139  Mass. 

72  N.  W.  888.  315 ;  Kindinger  v.  Saginaw,  59  Mich. 

s  City  of  London  v.  Wood,  12  Mod.  355.    See  Beach,   Pub.   Corp.,  sec. 

674 ;  Reg.  v.  Rogers,  2  Lord  Raym.  1289. 
777. 


§  58]  JUDICIAL  POWER.  65 

§58.  Procedure — Jury  trial. — The  procedure  in  municipal 
courts  is  ordinarily  of  a  summary  nature,  as  the  number  and 
comparative  unimportance  of  the  offenses  tried  renders  the  system 
of  jury  trial  impracticable.  The  constitutional  right  to  a  jury 
trial  has  never  been  understood  to  apply  to  violations  of  city 
ordinances.  The  violations  of  such  ordinances  are  not  criminal 
offenses  or  crimes  as  those  words  are  understood  in  constitutional 
law.  The  constitutional  guaranty  that  "the  right  of  trial  by  jury 
shall  remain  inviolate"  does  not  prevent  the  enforcement  of 
municipal  ordinances  by  a  summary  procedure;10  but  the  legis- 
lature cannot  confer  upon  municipal  corporations  the  power  to 
proceed  summarily  and  try  persons  for  the  commission  of  crimi- 
nal offenses  against  the  laws  of  the  state.11  It  is  generally  held 
in  the  state  courts  that  the  constitutional  right  of  a  jury  trial 
is  not  denied  if  the  defendant,  who  is  convicted  summarily  in  an 
inferior  court,  has  a  right  to  appeal  to  a  higher  court  where  he 
can  obtain  a  jury  trial;12  but  the  supreme  court  of  the  United 
States,  in  a  recent  case,13  said:  "We  cannot  assent  to  that  in- 
terpretation of  the  constitution,  except  in  that  class  or  grade  of 
offenses  called  petty  offenses,  which,  according  to  the  common 
law,  may  be  proceeded  against  summarily  in  any  tribunal  legally 
constituted  for  that  purpose.  The  guaranty  of  an  impartial  jury 
to  the  accused  in  a  criminal  prosecution,  conducted  either  in  the 
name  or  by  or  under  the  authority  of  the  United  States,  secures 
to  him  the  right  to  enjoy  that  mode  of  trial  from  the  first  moment, 
and  in  whatever  court  he  is  put  on  trial  for  the  offense  charged. ' ' 
Actions  for  violations  of  city  ordinances  are  sometimes  brought 
in  the  name  of  the  state14  and  sometimes  in  the  name  of  the 
corporation.15 

10  Callan  v.  Wilson,  127  U.  S.  540;  1*  State  v.  Powell,  97  N.  C.  417. 
State  v.  Lee,  29  Minn.  445 ;  State  v.  Although  the  prosecution  is  in  the 
Robitshek,  60  Minn.  123;  State  v.  name  of  the  state  the  offenses  are 
Harris,  50  Minn.  128 ;  Hollenbeck  against  the  city,  and  a  notice  of  ap- 
v.  Marshalltown,  62  Iowa,  21 ;  State  peal  must  be  served  on  the  city  at- 
v.  Glenn,  54  Md.  571.  torney  and  not  on  the  attorney-gen- 

ii Tierney  v.  Dodge,  9  Minn.  156.  eral.  State  v.  Sexton,  42  Minn.  154. 
For  the  history  of  courts  of  sum-  The  state  as  such  has  no  interest  in 
mary  jurisdiction,  see  Stephens'  a  prosecution  for  a  violation  of  a 
Hist.  Crim.  Law,  I,  p.  122.  city  ordinance.  State  v.  Robitshek, 

12  Jones  v.  Robins,  8  Gray,  329 ;     60  Minn.  123. 

Maxwell  v.  Board,  119  Ind.  20 ;  Em-        is  Williams  v.  Com.,  4  B.  Mon. 
poria  v.  Volmer,  12  Kan.  622.  (Ky.)   146;  Davenport  v.  Bird,  34 

is  Callan  v.  Wilson,  127  U.  S.  540,  Iowa,  524 ;  Ex  parte  Holwedell,  74 
556.  Mo.  395. 


CHAPTER  VII. 


STREETS  AND  HIGHWAYS. 


59.  Nature  of  a  public  way. 

60.  How  established. 

61.  Relation  of  public  corporation 

to  streets  and  highways. 

62.  Rights  remaining  in  the  fee- 

owner. 

63.  Rights  of  abutters  as  such. 

64.  Uses    not    within    the   public 

easement. 


§  65.  Power  of  municipal  corpora- 
tions  to  grant  franchises. 

66.  Police   ordinances    regulating 

use  of  streets,  and  franchise 
companies. 

67.  Vacation :  power  of  municipal 

authorities. 

68.  Vacation:  rights  of  abutters. 


§  59.  Nature  of  a  public  way. — A  street  or  highway,  it  is  to 
be  remembered,  is  the  space  devoted  to  the  purposes  of  a  public 
way ;  and  the  easement  of  a  public  way  is  vested  in  the  unorgan- 
ized public.  The  power  over  this  public  easement  which  may  be 
exerted  by  the  legislature,  as  representing  the  public,  may  be 
delegated  by  it  to  municipalities. 

§  60.  How  established. — The  easement  of  a  way  may  be  ac- 
quired by  the  public  in  any  one  of  several  modes : 

( 1 )  By  rights  in  the  nature  of  prescription :  As  the  presump- 
tion which  supports  a  prescriptive  right  is  that  of  a  lost  grant, 
under  a  strict  view  it  cannot  apply  as  to  a  public  way  because  the 
unorganized  public  is  not  such  a  grantee  as  can  take  by  grant.1 
There  may  be  by  analogy,  however,  after  user  for  twenty  years, 
a  conclusive  presumption  that  originally  the  way  was  legally  laid 


i  Angell,  Highways  (3rd  ed.), 
§  131 ;  compare  Elliott,  Roads  and 
Streets,  (2nd  ed.)  §169;  Post  v. 
Pearsall,  22  Wend.  444;  compare 
Cohoes  v.  Delaware,  etc.,  Co.,  134 


N.  Y.  397,  31  N.  E.  887 ;  but  statute 
has  established  the  doctrine  of  pre- 
scription as  to  highways  in  New 
York.  Speir  v.  New  Utrecht,  121 
N.  Y.  420,  24  N.  E.  692. 


66 


§60] 


STREETS   AND    HIGHWAYS. 


67 


out  by  the  proper  local  authorities.  Such  a  presumption  obtains 
in  most  states.2  "Ways  resting  upon  it  are  usually  termed  "ways 
by  prescription,"  and  are  proved  by  substantially  the  same  evi- 
dence as  would  support  technical  prescription.3 

(2)  By  dedication :  A  dedication  of  land  to  the  use  of  a  public 
way  is  effected  by  acts  of  the  owner  expressly  or  impliedly  de- 
voting it  to  such  use,  and  an  acceptance  by  or  on  behalf  of  the 
public,  which  acceptance  raises  an  estoppel  against  the  owner.4 
According  to  the  original  doctrine,  the  acceptance  to  complete  the 
dedication  might  be  either  by  a  simple  public  user  or  by  acts  of 
public  authorities  dealing  with  the  land  as  a  highway.5  But  the 
courts  of  many  states,  because  of  the  responsibility  imposed  on 
municipal  corporations  for  defects  in  ways  and  the  need  of  in- 
telligent representation  on  behalf  of  the  public,  have  adopted  the 
rule  that  the  acceptance  must  be  either  expressly  or  impliedly 
by  acts  of  public  authorities  in  charge  of  the  public  ways  of  the 
locality.6  As  a  rule  the  offer  to  dedicate  may  be  withdrawn  be- 


aOdiorne  v.  Wade,  5  Pick.  421; 
Reed  v.  Northfield,  13  Pick  94 ;  Com- 
monwealth v.  Coupe,  128  Mass.  63; 
Rose  v.  Farmington,  196  111.  226; 
63  N.  E.  631 ;  Conim.  v.  Cole,  2G  Pa. 
187 ;  Blanchard  v.  Moulton,  63  Me. 
434;  Cohoes  v.  Delaware,  etc.,  Co., 
134  N.  Y.  397,  31  N.  E.  887 ;  Detroit 
v.  Rd.  Co.,  23  Mich.  173.  As  to  the 
distinction  in  the  case  of  unenclosed 
woodland,  see  Hutts  v.  Tindall,  6 
Rich.  Law,  396. 

In  Krier's  Private  Road,  73  Pa. 
109,  it  was  held  that  roads  by  pre- 
scription rest  on  adverse  user,  in 
analogy  to  the  statute  of  limita- 
tions, and  not  upon  the  fiction  of  a 
lost  grant.  And  see,  Marion  v.  Skill- 
man,  127  Ind.  130. 

s  To  establish  a  way  by  prescrip- 
tion, the  use  must  have  been  ad- 
verse, exclusive,  continuous,  and 
uninterrupted  for  a  period  of  twen- 
ty years,  and  with  the  knowledge 
of  the  owner  of  the  land.  Rose  v. 
Farmington,  196  111.  226,  63  N.  E. 
631.  See  Shellhouse  v.  State,  110 
Ind.  509,  11  N.  E.  484;  State  v. 
Green,  41  la.  693 ;  Pentland  v.  Keep, 


41  Wis.  490;  Howard  v.  State,  47 
Ark.  431. 

4  Cincinnati  v.  White,  6  Pet.  431 ; 
Hobbs  v.  Lowell,  19  Pick.  405;  Co- 
hoes  v.  Delaware,  etc.,  Co.,  134  N. 
Y.  397,  31  N.  E.  887  and  cases  cited ; 
Bushnell  v.  Scott,  21  Wis.  451,  94 
Am.  Dec.  555;  Curtiss  v.  Hoyt,  19 
Conn.  154. 

As  a  dedication  rests  on  estoppel, 
it  cuts  off  any  adverse  right  of 
dower  in  the  land.  Venable  v.  Wa- 
bash  Western  R.  Co.,  112  Mo.  103, 
20  S.  W.  493. 

s  Manderschid  v.  Dubuque,  29  la. 
73;  Cincinnati  v.  White,  6  Peters, 
431. 

.  « Bowers  v.  Suffolk  Mfg.  Co.,  4 
Cush.  332 ;  State  v.  Wilson,  42  Me. 
9 ;  Tillman  v.  People,  12  Mich.  401 ; 
Chapman  v.  Saulte  Ste.  Marie,  146 
Mich.  23;  Harriman  v.  Howe,  78 
Hun.  280,  affd.  155  N.  Y.  683 ;  -Rus- 
sell v.  Chicago,  etc.,  R.  Co.,  205  111. 
155.  Contra,  Manderschid  v.  Du- 
buque, 29  la.  73.  In  Massachusetts 
dedication  of  ways  has  been  abol- 
ished by  statute.  Comm.  v.  Coupe, 
128  Mass.  63. 


68  PUBLIC   CORPORATIONS.  [  §  61 

fore  acceptance;  but  after  a  street  has  been  opened  by  a  land- 
owner and  abutting  lots  sold,  the  purchasers  ordinarily  acquire 
a  right  in  the  nature  of  an  equitable  easement  to  have  the  street 
remain  open,  which  prevents  subsequent  withdrawal.7 

In  some  states  a  method  for  making  dedication  of  streets  is 
provided  by  statute.  It  usually  consists  of  making,  acknowledg- 
ing, and  recording  a  plat  or  plan ;  and  it  usually  vests  the  fee  in 
the  local  corporation.  An  ineffectual  endeavor  to  make  a  statu- 
tory dedication  may  take  effect  as  a  common  law  dedication,  if  the 
elements  of  a  common  law  dedication  are  present.8 

A  municipal  corporation  may  acquire  land  in  fee  by  voluntary 
purchase  and  open  a  public  way  upon  it,  or  it  may  acquire  an 
easement  only,  and  appropriate  the  easement  to  the  public.  In 
such  cases,  the  foundation  of  the  public  way  is  still  dedication, 
but  dedication  by  the  corporation.9 

(3)  By  exercise  of  the  right  of  eminent  domain  in  proceedings 
authorized  by  statute:  Except  where  the  statute  expressly  and 
clearly  provides  that  the  proceedings  shall  vest  the  fee  in  the  cor- 
poration, only  the  easement  of  a  public  way  is  taken.10 

§  61.  Relation  of  public  corporation  to  streets  and  highways. 
— As  the  substance  of  a  public  way,  however  established,  is  the 
easement  which  resides  in  the  public  at  large,  the  local  corpora- 
tion within  the  boundaries  of  which  it  is  situated  ordinarily  has 
no  legal  title  in  it.  It  may  under  some  circumstances  have  title 
to  the  fee  in  the  land,  but  even  then  it  holds  it  subject  to  the  pub- 
lic rights.  Its  position  is  merely  that  of  a  governmental  agency 
having  possession  and  control.11  In  most  states  the  corporation 
is  expressly  charged  with  the  duty  of  repairing  the  public  ways 
within  its  territory  as  a  mandatory  duty.  In  others  it  is  judi- 
cially deemed  to  be  charged  with  such  a  duty  under  its  general 
authority  to  care  for  and  control  them. 

A  municipal  corporation  is  usually  invested,  under  grants  in 
general  terms,  with  discretionary  authority  to  establish,  alter, 

7  Riverside  v.  MacLain,  210  111.        9  San  Francisco  v.   Calderwood, 

308.  31  Cal.  585;  Tillman  v.  People,  12 

s  Russell  v.  Lincoln,  200  111.  511,  Mich.  401. 

65  N.  E.  1088 ;  People  v.  Marin  Co.,        10  Stackpole  v.  Healy,  16  Mass. 

103  Cal.  223,  26  L.  R.  A.  659 ;  Hur-  33,  and  c.  c. 

ley  v.  Mississippi,  etc.,  Co.,  34  Minn.        n  Clinton  v.  Railroad  Co.,  24  la* 

143,  24  N.  W.  917.  455. 


§  61]  STREETS  AND   HIGHWAYS.  69 

improve  and  vacate  streets  and  highways,  and  to  enact  police 
regulations  to  promote  the  safety,  convenience  and  comfort  of 
the  public  in  using  them. 

It  has  no  power,  even  though  it  owns  the  fee,  to  pervert  the 
way  to  other  uses,  or  to  assign  any  portion  of  it  to  a  special  pri- 
vate use.  A  city  cannot,  for  example,  authorize  an  abutter  to 
maintain  a  stairway  within  the  street  line  to  connect  with  an 
upper  story.12  But  this  rule  has  no  bearing  upon  the  power  to 
grant  franchises  to  private  corporations  where  the  purpose  is  a 
public  service. 

A  local  corporation  has  no  such  property  interest  in  a  way  as 
to  entitle  it  to  damages  for  the  flooding  thereof  under  the  mill 
acts,  even  though  it  is  required  to  make  the  necessary  repairs.13 
But  a  liability  that  rests  upon  it  for  defects  in  public  ways,  and 
a  responsibility  for  their  maintenance,  gives  it  an  interest  which 
entitles  it  to  a  remedy  in  equity  by  injunction  against  any  un- 
authorized obstruction  or  encroachment.14  And  it  may  recover 
over  from  one  who  has  caused  a  defect,  the  amount  of  the  expenses 
of  repairing  15  or  of  a  judgment  recovered  against  it  for  damages 
occasioned  thereby.16 

Where  the  fee  of  a  public  highway  is  in  the  municipality,  there 
is  no  technical  impediment  to  its  maintaining  ejectment  against 
one  who  is  perverting  or  obstructing  it.  Where  it  has  not  the 
fee,  a  technical  difficulty  presents  itself  against  such  an  action, 
but  the  courts  have  been  impelled  by  considerations  of  expediency 
to  the  conclusion  that  the  statutory  right  to  possession  is  suffi- 


12  McCormick    v.    Weaver,    144  the  meaning  of  a  statute.    McHugh 

Mich.  6,  107  N.  W.  314.     And  see  v.  Boston,  173  Mass.  408,  53  N.  E. 

Lowery  v.  Pekin,  210  111.  575,  71  905. 

N.  E.  626;  Mikesell  v.  Durkee,  34  "Newark  v.  Del.  Lack.,  etc.,  R. 

Kas.  509.     A  city  cannot  grant  a  Co.,  42  N.  J.  Eq.  196,  7  Atl.  123; 

right  to  maintain  a  private  railway  Detroit  v.  Detroit,  etc.,  R.  Co.,  23 

track  in  a  street.     Heath  v.  Des  Mich.    173;    Springfield    v.    Conn. 

Moines,  etc.,  R.  Co.,  61  la.  11,  15  River  R.  Co.,  4  Cush.  63 ;  2  Dillon, 

N.  W.  573 ;  Hatfield  v.  Straus,  189  Municipal  Corporations,   (4th  ed.) 

N.  Y.  208.    See  1  Andrews,  Amer-  §  659,  and  cases  cited, 

lean  Law,  §  408.  is  Andover  v.  Sutton,  12  Met.  182. 

is  Cheshire  v.  Reservoir  Co.,  119  ie  Lowell  v.  Spaulding,  4  Cush. 

Mass.  356 ;  A  highway  is  not  a  "pub-  277. 
lie  work  owned  by  a  city"  within 


70 


PUBLIC   CORPORATIONS. 


[§62 


cient  to  enable  it  to  maintain  ejectment,  even  against  the  owner 
of  the  fee.17 

§  62.  Rights  remaining  in  the  fee-owner. — The  owner  of  the 
fee  in  a  highway,  who  is  usually  the  owner  of  the  abutting  prop- 
erty, retains  all  the  rights  of  ownership  in  the  soil  not  inconsist- 
ent with  the  public  easement.18  He  may  make  a  reasonable  use 
of  any  part  of  the  space  which  may  be  unused  and  unneeded  by 
the  public,  or  which  does  not  interfere  with  the  public  use,19  and 
may  excavate  beneath  the  surface ;  as,  for  example,  for  an  addi- 
tion to  a  cellar.20 

The  owner  of  the  fee  is  entitled  to  the  timber  and  vegetation  on 
the  land,  and  the  springs  and  minerals  therein.  He  may  main- 
tain trespass  against  any  person  who  without  right  plows  the 
soil,  cuts  trees  or  picks  fruit  beside  the  roadway;  21  and  he  may 
maintain  ejectment  or  procure  an  injunction  against  one  who, 
without  right,  places  a  permanent  structure  or  obstruction  there- 
on.22 If  the  city  or  its  officers,  or  contractors  under  its  author- 
ity, quarry  rock  or  dig  gravel  in  the  land,  except  properly  for 
purposes  of  grading  or  repairing,  they  are  liable  to  him  in 
damages.23 


«  Cincinnati  v.  White,  6  Peters, 
431 ;  Hoboken  Land,  etc.,  Co.  v.  Ho- 
boken,  36  N.  J.  L.  540;  City  of 
California  v.  Howard,  78  Mo.  88 ;  2 
Dillon,  Mun.  Corp.  (4th  ed.)  §662. 

is  "The  owner  of  the  land  there- 
fore retains  his  title  in  trees,  grass, 
growing  crops,  buildings  and  fences 
standing  in  the  highway  at  the 
time  of  the  laying  out,  (unless  he 
fails  to  remove  them  within  a  rea- 
sonable time  after  notice  to  do  so,) 
as  well  as  in  any  mines  or  quarries 
beneath,  which  are  not  part  of  the 
surface  of  the  earth  upon  and  of 
which  the  highway  is  made."  Gray, 
C.  J.,  in  Denniston  v.  Clark,  125 
Mass.  216,  at  221. 

i»  (Keeping  piles  of  wood)  King 
v.  Norcross,  196  Mass.  373;  (ditch 
for  drainage)  Nelson  v.  Fehd,  203 
111.  120,  67  N.  E.  828.  In  this  case 
it  was  held  that  the  question  was 


properly  left  to  a  jury  whether  a 
ditch  rendered  the  highway  unsafe, 
and  upon  their  verdict  that  it  did 
so,  the  fee-owner  was  held  liable  to 
a  traveller  for  personal  injuries  oc- 
casioned thereby. 

20  McCarthy  v.   Syracuse,  46  N. 
Y.  194;  Allen  v.  Boston,  159  Mass. 
324,  34  N.  E.  519. 

21  Turner  v.  Board,  L.  R.  9  Eq. 
418 ;  Daily  v.  State,  51  Oh.  St.  348, 
37  N.  E.  710. 

22  Peck  v.   Smith,  1  Conn.  103; 
Goodtitle   v.   Alker,   1   Burr.   133; 
Colstrum  v.  Railway  Co.,  33  Minn. 
516,  24  N.  W.  255;  Postal  Tel.  Co. 
v.  Eaton,  170  111.  513,  49  N.  E.  365. 

23  Adams  v.  Emerson,  6  Pick.  57  ; 
Rich  v.  Minneapolis,  37  Minn.  423, 
35  N.  W.  2;  Robbins  v.  Barnum,  1 
Pick.   122;   Robert  v.   Sadler,  104 
N.  Y.  229,  10  N.  E.  428. 


§  62]  STREETS  AND  HIGHWAYS.  71 

When  a  city  council  or  such  other  public  authority  as  has 
been  given  power  to  do  so  discontinues  or  abandons  the  way,  the 
land  reverts  to  the  fee-owner  freed  of  the  servitude.24  This  was 
held  to  be  the  consequence  even  in  a  case  where  the  corporation 
had  paid  the  owner  full  damages  for  the  establishment  of  the 
way  and  had  discontinued  the  way  before  actually  constructing 
and  opening  it.25 

The  rights  of  the  fee-owner  are  inferior  to  the  needs  of  public 
accommodation,  and  must  give  way  to  the  requirements  of  the 
public  authorities  in  grading,  repairing  or  improving  the  high- 
way, and  in  passing  regulations  for  public  safety  and  conven- 
ience.26 In  working,  grading  and  repairing  the  way,  the  public 
authorities  are  entitled  also  to  take  and  utilize  the  materials  con- 
tained in  the  land.  They  may  take  soil,  gravel,  rock  or  timber 
from  one  part  of  the  way  and  use  it  at  another ;  and  by  some  au- 
thorities may  take  the  same  from  one  street  or  highway  and  use 
it  in  another  street  or  highway  within  the  same  administrative 
jurisdiction,  on  the  ground  that  the  whole  system  of  each  local 
jurisdiction  is  but  one  indivisible  easement.27 

It  is  a  violation  of  the  rights  of  the  fee-owner  to  devote  the  soil, 
without  his  consent,  to  any  use  which  is  not  within  the  scope  of 
the  easement  of  a  public  way.  If  a  public  corporation  or  any  pri- 
vate person  or  corporation,  even  acting  under  express  legislative 
permission,  imposes  a  new  servitude  upon  the  fee  (otherwise  than 
under  the  right  of  eminent  domain,  making  due  compensation) 
the  fee-owner  may  maintain  trespass  or  ejectment  or  have  an  in- 
junction. The  action  violates  his  property  rights  in  the  land,  and 
the  authorizing  statute  is  unconstitutional.28 


2*  Jackson  v.  Hathaway,  15  Johns,  condition."    Boston  v.  Richardson, 

447.  13  Allen  146,  at  159.    Trees  planted 

25  Westbrook  v.  North,  2  Greenlf.  by  a  fee-owner  in  the  highway  are 
(Me.)  179 ;  Furbish  v.  Co.  Commrs.,  subject  to  removal  by  public  author- 
93  Me.  117,  44  Atl.  364.  ities  in  improving  the  way.     Sher- 

26  "Yet  in  any  highway  the  mu-  man  v.  Butcher,  72  N.  J.  L.  53. 
nicipal  authorities  may  do  all  acts  27  Denniston  v.  Clark,  125  Mass, 
appropriate  or  incidental  to  its  use  216,  and  cases  cited ;  Huston  v.  Fort 
by  the  public.     They  may  raise  or  Atkinson,   56  Wis.  350,   14  N.   W. 
lower  the  surface,  dig  up  the  earth,  444 ;  Griswold  v.  Bay  City,  35  Mich, 
cut  down  trees,  or  do  any  other  452.     Compare  Robert   v.    Sadler, 
thing  necessary  or  proper  to  keep  104  N.  Y.  229,  10  N.  E.  428. 

the  highway  in  suitable  repair  and  28  Cases  cited,  infra,  §  64. 


72  PUBLIC   CORPORATIONS.  [§  63 

When  the  fee  is  owned  by  a  municipal  corporation,  there  are 
probably  few  circumstances,  if  any,  under  which  the  right  of  the 
corporation  as  fee-owner  could  be  asserted  in  resistance  to  official 
action  authorized  by  the  legislature ;  for  the  corporation  holds  the 
fee  merely  as  a  custodian  for  the  public,  and  subject  to  legislative 
disposal.29 

§  63.  Rights  of  abutters  as  such. — In  the  absence  of  con- 
trolling evidence,  the  owner  of  property  which  abuts  on  a  street 
or  highway  is  presumed  to  own  to  the  middle  of  the  way.30  But 
regardless  of  the  ownership  of  the  fee — whether  the  fee  be  in  the 
abutter,  in  other  persons,  or  in  the  municipality — he  is  invested 
with  an  easement  in  the  space  in  front  of  his  property  for  access, 
light  and  air.  This  easement  is  implied  in  law  from  the  position 
of  the  property ;  it  entitles  the  abutter  to  have  the  street  or  high- 
way remain  unobstructed  in  front  of  his  premises,  and  conse- 
quently protects  him  as  against  most  new  uses  which,  if  he  owned 
the  fee,  would  be  new  servitudes  upon  his  land.31  By  the  gen- 
eral view,  it  does  not  prevail  as  against  uses  to  which  a  public 
way  may  properly  be  put,  even  though  such  uses  injure  the 
abutter  in  his  access,  light  or  air.  For  example :  in  the  absence 
of  statutory  provision,  an  abutter  is  not  entitled  to  damages  for 
the  lowering  of  the  grade  of  a  highway,  though  the  change  may 
interfere  with  access  to  his  property.32 

2» Clinton  v.  Railroad  Co.,  24  la.  (annotated);  (viaduct)  Sauer  v. 

455.  New  York,  206  U.  S.  536 ;  Henderson 

so  Hinchman  v.  Paterson  Horse  v.  Minneapolis,  32  Minn.  319 ;  Rad- 
ii. Co.,  17  N.  J.  Eq.  75,  and  cases  cliff  v.  Brooklyn,  4  N.  Y.  205,  53 
cited.  See  Boston  v.  Richardson,  13  Am.  Dec.  357 ;  Fellowes  v.  New 
Allen,  146.  Haven,  44  Conn.  240,  26  Am.  R. 

si  (Elevated  railroad,  fee  in  city)  447;  Hovey  v.  Mayo,  43  Me.  322; 

Story  v.  N.  Y.  Elev.  R.  Co.,  90  N.  Burlington  v.  Gilbert,  31  la.  356,  7 

Y.  122;  Lahr  v.  Metropolitan  Elev.  Am.  R.  143;  Delphi  v.  Evans,  36 

R.  Co.,  104  N.  Y.  268,  10  N.  E.  528 ;  Ind.  90 ;  Schattner  v.  Kansas  City, 

(steam  railroad)  Onset  Ry.  Co.  v.  53  Mo.  162.  Contra  (where  the 

Co.  Commrs.,  154  Mass.  395,  28  N.  land-owner  has  improved  his  prop- 

E.  286;  Theobold  v.  Louisville,  etc.,  erty  with  reference  to  an  estab- 

Railway  Co.,  66  Miss.  279;  see  lished  grade).  Crawford  v.  Dela- 

Grand  Rapids,  etc.,  R.  Co.  v.  Heisel,  ware,  7  Oh.  St.  459 ;  Akron  v.  Cham- 

38  Mich.  62;  and  see  next  section  berlain  Co.,  34  Oh.  St.  328.  So  if 

for  cases  contra  as  to  steam-rail-  a  subway  cuts  off  cellar-extensions 

road.  under  the  street,  the  abutter  is  not 

32  Callender  v.  Marsh,  1  Pick,  entitled  to  damages.  Sears  v. 

418;  (viaduct)  Selden  v.  Jackson-  Crocker,  184  Mass.  586,  69  N.  E.  327. 
ville.  28  Fla.  558,  14  L.  R.  A.  370 


§  64]  STREETS  AND   HIGHWAYS.  73 

§  64.  Uses  not  within  the  public  easement ;  nuisances  and 
new  servitudes. — An  appropriation  of  any  portion  of  a  street 
or  highway  to  a  use  which  is  not  properly  within  the  easement  of 
a  public  way  is  usually,  in  so  far  as  it  impedes  the  free  use  of 
the  space  by  the  public,  a  public  nuisance.  Such  a  nuisance  is 
beyond  any  general  power  of  a  public  corporation  to  establish 
or  to  authorize.  Thus,  a  city  has  no  power  to  construct  a  market- 
house,33  or  a  stand-pipe,34  or  an  electric  light  plant 35  in  a  street 
or  square ;  nor  to  grant  a  license  to  a  fruit-dealer  to  keep  a  per- 
manent booth  upon  a  sidewalk.36  As  regards  the  public  rights, 
however, — the  aspect  of  the  obstruction  as  a  nuisance  to  the  pub- 
lic— it  may  be  legalized  by  statute,  or  by  a  municipal  ordinance 
passed  under  special  and  express  authority ;  for  the  rights  of  the 
public  may  be  relinquished  by  legislation.37  But  such  uses  invade 
also  the  rights  of  the  fee-owner  and  abutter.  As  respects  him 
they  cannot  be  made  legal,  without  his  consent,  except  under  the 
right  of  eminent  domain ;  for  they  impose  a  new  servitude  upon 
the  fee,  and  they  violate  the  abutter 's  easement.  As  against  a 
fee-owner  or  an  abutter,  not  even  statutory  authority  can  make 
rightful  the  erection  by  a  city  in  a  public  street  of  the  above 
structures.38 

In  deciding  what  uses  are  included  in  the  original  easement  of 
a  public  way,  courts  have  adopted  the  policy  of  allowing  liberally 
for  the  needs  of  the  public.  The  easement  embraces  new  and 
improved  modes  of  travel  and  transportation  as  they  may  be  in- 
vented from  time  to  time.39  It  even  includes  use  of  the  space 

33  State  v.  Mayor,  5  Porter  (Ala.)  cated.     111.,  etc.,  Canal  Co.  v.  St. 

279;  State  v.  Laverack,  34  N.  J.  L.  Louis,  2  Dillon  (TJ.  S.  C.  Ct.)  70. 
201 ;  Columbus  v.  Jacques,  30  Ga.        39  "The   location   of  a   highway 

506;     (town    hall)    Princeville    v.  creates  a  servitude  which  includes 

Auten,  77  111.  325.  all  forms  of  travel  not  prohibited 

s*  Barrows  v.  Sycamore,  150  111.  by  law,  with  the  right  in  the  Legis- 

588.  lature  to  give  to  municipal  or  other 

35  Mcllhinny     v.     Trenton,     148  corporations,    or   to    private   indi- 

Mich.  380.  viduals,   the  power  reasonably  to 

so  Costello  v.  State,  108  Ala.  45.  modify  the  use  of  the  same  for 

3T  Hinchman   v.   Paterson  Horse  travel,  as  public  convenience  and 

R.  Co.,  17  N.  J.  Eq.  75.  necessity,    in    the    application    of 

ss  Cases  cited  supra.    A  grain  ele-  modern   improvements,    may   from 

vator  placed  upon  a  public  wharf  is  time  to   time  require."     Attorney- 

not  a  new  servitude,  because  the  General  v.   Metropolitan  Railroad 

use  is  not  a  different  one  from  that  Co.,  125  Mass.  515,  at  518. 
to  which  the  property  was  dedi- 


74 


PUBLIC   CORPORATIONS. 


[§64 


below  the  surface ;  a  subway  is  not  a  new  servitude.40  An  ordi- 
nary street-railroad  is  not  a  new  use,  whether  drawn  by  horses,41 
or  propelled  with  electricity  from  trolleys,42  or  with  steam  mo- 
tors; 43  for  it  does  not  exclude  other  travel  from  the  portion  of 
the  way  occupied  by  the  tracks,  and  is  conducted  in  co-operation 
with  other  vehicles  and  travelers.  It  has  been  held  that  even 
interurban  street-railways,  carrying  mail,  baggage  and  express 
matter,  are  within  this  class.44  But  a  steam  commercial  railroad 
of  the  ordinary  type  is  a  new  use.  The  graded  road-bed,  the  high 
rails,  and  the  velocity  of  the  trains,  exclude  other  travel  from 
the  appropriated  space ;  and  these  and  other  attributes  make  the 
use  a  different  and  inconsistent  one.43  The  same  has  been  decided 
of  elevated  railroads.46 

Many  courts  have  decided  that  when  a  municipality  owns  the 
fee  in  a  highway,  no  rights  of  an  adjoining  owner  are  violated  by 
the  mere  placing  of  a  steam-railroad  or  similar  foreign  burden 


40  Sears   v.    Crocker,   184   Mass. 
586;  Adams  v.  Saratoga  &  Wash- 
ington   Rd.    Co.,    11    Barb.    414; 
(where  fee  is  in  the  government) 
Chicago    v.   Rumsey,    87    111.    348; 
Summerfleld  v.  Chicago,  197  111.  270. 

41  Hinchman   v.   Paterson  Horse 
Railroad  Co.,  17  N.  J.  Eq.  75;  At- 
torney-General v.  Metropolitan  Rd. 
Co.,  125  Mass.  515 ;  Finch  v.  River- 
side,  etc.,   Ry.   Co.,   87   Cal.   597; 
People  v.  Kerr,  27  N.  Y.  188. 

42  Howe  v.  West  End  St.  Ry.,  167 
Mass.  46 ;  Detroit  City  Ry.  v.  Mills, 
85  Mich.  634.     (Trolley  poles)  Hal- 
sey  v.  Rapid  Tr.  Ry.  Co.,  47  N.  J. 
Eq.  380,  20  Atl.  859. 

43  Briggs  v  Lewiston,  etc.,  Horse 
H.  Co.,  79  Me.  363;  Newell  v.  Ry. 
Co.,  35  Minn.  112. 

44  Mordurst  v.  Ft.  Wayne,  etc., 
Traction   Co.,   163   Ind.   268.     But 
contra,  Chicago,  etc.,  R.  Co.  v.  Mil- 
waukee, etc.,  R.  Co.,  95  Wis.  561, 
70  N.  W.  678,  60  Am.  St.  R.  136,  37 
L.  R.  A.  856. 


45  Phipps,  v.  W.  Maryland  R.  Co., 
66  Md.  319;  Nichols  v.  Ann  Arbor 
&  Y.  St.  Ry.  Co.,  87  Mich.  361,  49 
N.  W.  538,  16  L.  R.  A.  371 ;  Grand 
Rapids,  etc.,  R.  Co.   v.  Ileisel,  38 
Mich.  62;  Street  Ry.  Co.  v.  Doyle, 
88  Term.  747;   Springfield  v.  Con- 
necticut River  R.  Co.,  4  Cush.  63; 
Imlay  v.  Union  Branch  R.  Co.,  26 
Conn.  249,  68  Am.  Dec.  392 ;  Athens 
Terminal   Co.   v.  Athens  F.  &  M. 
Works,  129  Ga.  393,  58  S.  E.  891; 
O'Connell  v.  Chicago,  etc.  R.  Co., 
184  111.  308,  56  N.  E.  353 ;  Burling- 
ton v.  Penn.  R.  Co.,  56  N.  J.  Eq. 
259,  38  Atl.  849.   Contra,  Montgom- 
ery v.  Santa  Ana  &  W.  R.  Co.,  104 
Cal.  186,  37  Pac.  786,  43  Am.  St.  R. 
89,  25  L.  R.  A.  654;  Porter  v.  No. 
Mo.  R.  Co.,  33  Mo.  128;  Struthers 
v.   Dunkirk,  etc.,  Ry.  Co.,   87  Pa. 
St.  282. 

46  Lahr  v.  Metropolitan  Elev.  R. 
Co.,  104  N.  Y.  268,  10  N.  E.  528; 
Story  v.  N.  Y.  Elev.  R.  Co.,  90  N. 
Y.  122,  43  Am.  Rep.  146. 


§64] 


STREETS  AND  HIGHWAYS. 


75 


in  a  street.47  But  the  strong  tendency  of  authority  is  toward 
recognizing  the  a  butter's  easement  as  prevailing  in  such  cases, 
and  entitling  him  to  compensation  as  in  the  case  of  a  new  servi- 
tude; which  seems  the  sounder  view.48  Even  where  such  view 
does  not  obtain,  the  abutter  is  often  held  entitled  to  damages  for 
any  special,  consequential  injury  to  his  estate.49 

By  some  authorities,  the  public  easement  is  not  limited  to 
modes  of  travel,  but  entitles  the  public  to  use  the  highway  as 
a  general  channel  of  communication  and  transmission;  that  is, 
for  sewers  and  water-pipes  for  furnishing  facilities  to  abutting 
estates ;  gas-pipes  and  electric-light  poles  and  wires  for  the  same 
purpose,  or  for  lighting  streets ;  telegraph  and  telephone  poles  and 
wires  and  the  like.50  On  the  other  hand,  although  it  is  unani- 
mously conceded  on  one  ground  or  another  that  sewer,  water  and 
gas-pipes  are  legitimate,  many  courts  have  firmly  adhered  to  the 
rule  that  telegraph  and  telephone  systems,  as  they  are  not  forms 


47  Pittsburgh,  Ft.  W.  &  C.  R.  Co., 
21  111.  516  (changed  by  111.  Consti- 
tution) ;  O'Connor  v.  St.  Louis,  etc., 
E.  Co.,  56  la.  735;  Iron  Mt.  R.  Co., 
v.  Bingham,  87  Tenn.  522,  11  S.  W. 
705,  4  L.  R.  A.  622. 

is  Lahr  v.  Metropolitan  Elev.  R. 
Co.,  104  N.  Y.  268,  10  N.  E.  528; 
Story  v.  N.  Y.  Elev.  R.  Co.,  90  N.  Y. 
122,  43  Am.  R.  146;  Decker  v. 
Evansville  Suburban  R.  Co.,  133 
Ind.  493,  33  N.  E.  349;  Kansas,  N. 
&  D.  R.  Co.  v.  Cuykendall,  42  Kan. 
234,  21  Pac.  1051;  Montgomery  v. 
Santa  Ana  &  W.  R.  Co.,  104  Cal. 
186,  37  Pac.  786;  Grand  Rapids, 
etc.,  R.  Co.  v.  Heisel,  38  Mich.  62, 
31  Am.  R.  306;  Onset  Ry.  v.  Co. 
Commrs.,  154  Mass.  395,  28  N.  E. 
286. 

"The  later  and  better  considered 
judgments  hold  that  it  is  compara- 
tively unimportant  as  respects  the 
relative  rights  of  the  abutting  own- 
er and  the  public  in  and  over  streets 
[in  cases  of  obstructions?]  whether 
the  bare  fee  is  in  the  one  or  the 
other.  If  the  fee  is  in  the  public 
the  lawful  rights  of  the  adjoining 


owners  are  in  their  nature  equitable 
easements;  if  the  fee  is  in  the 
abutter  his  rights  in  and  over  the 
street  are  in  their  nature  legal ;  but, 
in  the  absence  of  controlling  legis- 
lative provision,  the  extent  of  such 
rights  is,  in  either  event,  substan- 
tially, perhaps  precisely,  the  same." 
2  Dillon,  Municipal  Corporations, 
(4th  ed.)  §  664a. 

49  So.  Carolina  R.  Co.,  v.  Steiner, 
44  Ga.  546. 

so  "Whenever  land  is  taken  for 
public  use  as  a  highway,  and  due 
compensation  made,  the  public,  or 
those  corporations  or  officers  who 
act  as  trustees  or  agents  of  the  pub- 
lic, have  a  right  to  make  any  use 
of  the  land,  directly  or  incidentally 
conducive  to  the  enjoyment  of  the 
public  easement,  and  which  the 
necessity  or  convenience  of  the  pub- 
lic may  require;  the  landowner  re- 
ceives a  sum  in  damages  which  in 
theory  of  law  is  an  indemnity  for 
all  such  uses,  unless  special  pro- 
vision for  further  compensation  is 
made  by  statute;  and  such  uses 
clearly  include  the  making  of  cul- 


76 


PUBLIC   CORPORATIONS. 


[§65 


of  travel  and  are  not  incident  to  the  use  or  the  care  of  the  streets 
or  to  the  enjoyment  of  abutting  estates,  are  not  within  the  public 
easement.51 

§65.  Power  of  municipal  corporations  to  grant  franchises 
in  streets. — The  right  to  enjoy  a  special  franchise  in  a  public 
way,  even  though  it  involves  using  the  way  in  a  manner  which  is 
within  the  public  easement,  can  arise  only  from  legislative  grant. 


verts,  drains  and  sewers  under  the 
highway  for  the  cleansing  of  the 
streets  and  the  accommodation  of 
the  inhabitants  on  either  side. 
Brainard  v.  Clapp,  10  Cush,  8-10, 
and  cases  cited.  Codman  v.  Evans, 
5  Allen,  309;  Cone  v.  Hartford,  28 
Conn.  363;  West  v.  Bancroft,  32 
Verm.  367;  People  v.  Kerr,  27  N. 
Y.  203,  204.  The  right  of  digging 
in  the  highways  for  the  purpose  of 
laying  and  repairing  common 
sewers  and  drains  was  expressly 
affirmed  and  regulated,  without  pro- 
viding for  compensation  to  any  one, 
in  the  earliest  statute  of  Massa- 
chusetts upon  the  subject.  Prov. 
St.  8  Anne,  c.  3 ;  Mass.  Prov.  Laws, 
(ed.  1726),  203;  Anc.  Chart.  389." 
Boston  v.  Richardson,  13  Allen  48, 
at  159 ;  Cone  v.  Hartford,  28  Conn. 
363 ;  Kelsey  v.  King,  32  Barb.  410 ; 
(telegraph)  Pierce  v.  Drew,  136 
Mass.  75;  (telegraph)  People  v. 
Eaton,  100  Mich.  208,  59  N.  W.  145. 

si  Eels  v.  Am.  Tel.  &  Tel.  Co., 
143  N.  Y.  133,  38  N.  E.  202 ;  Postal 
Tel.  Co.  v.  Eaton,  170  111.  513,  49 
N.  E.  365 ;  Chesapeake,  etc.,  Tel.  Co. 
v.  Mackenzie,  74  Md.  36,  21  Atl. 
690.  See  dissenting  opinion  of  Al- 
len, J.,  in  Pierce  v.  Drew,  supra,  at 
p.  88: 

"An  argument  has  been  drawn 
from  the  judicial  sanction  which 
has  been  given  to  the  use  of  streets 
for  drains  and  sewers,  and  for  gas 
and  water  pipes.  But  there  is  a 


palpable  distinction  between  such 
uses  and  that  for  the  establishment 
of  a  telegraph  line.  *  *  *  Then, 
again,  sewers  and  drains  are  built 
more  directly  by  public  officers,  and 
usually  are  of  direct  benefit  to  the 
abutting  estates,  as  well  as  to  the 
streets  themselves.  The  advan- 
tage to  abutting  owners  is  so  ap- 
parent, that,  under  our  statutes, 
they  may  be  assessed  for  the  ex- 
penses of  construction.  Gas-pip^ 
also  are  likely  to  be  of  direct  serv- 
ice in  furtherance  of  the  purposes 
for  which  streets  are  laid  out,  aid- 
ing public  travel,  and  benefiting  the 
abutting  lots.  There  is  a  general 
recognition  that  all  these  uses  are 
directly  subservient  to  the  purposes 
for  which  highways  are  estab- 
lished; and,  by  statute,  towns  are 
authorized  or  required  to  lay  water- 
pipes,  erect  watering  troughs  and 
fountains,  set  out  and  maintain 
shade  trees,  erect  guide-posts,  and 
erect  and  maintain  street  lamps. 
Pub.  Sts.  c.  27,  ss.  37,  50 ;  c.  53,  ss. 
1-4 ;  c.  54,  s.  9.  But  the  erection  of 
telegraph  lines  along  a  highway  is 
of  no  direct  and  peculiar  benefit  to 
travelers  upon  the  highway,  to  the 
highway  itself,  or  to  abutting  es- 
tates; and,  as  has  been  seen,  such 
lines  do  or  may  interfere  materially 
with  the  beneficial  use  and  enjoy- 
ment which  the  owner  of  the  soil 
might  otherwise  have  of  his  es- 
tate." 


§  66]  STREETS  AND  HIGHWAYS.  77 

The  power  to  decide  ultimately  upon  the  grant  is  usually  dele- 
gated to  local  authorities.  Their  discretion  varies  in  the  differ- 
ent states  from  a  general  authority  over  the  entire  matter  of 
street  franchises,  to  a  narrow  authority  to  consent  or  refuse  to 
consent  to  the  use  of  streets  by  corporations  which  are  otherwise 
empowered  and  governed  by  statute. 

A  local  agency  cannot  grant  a  valid  street  franchise  unless  it 
has  plain  authority  from  the  legislature,  either  in  express  words 
or  by  necessary  implication  to  do  so.  The  generally  accepted 
view  is  that  the  usual  power  in  general  terms  to  improve,  control 
and  regulate  the  use  of  streets,  does  not  give  authority  to  confer 
street-railway  franchises.52 

"Where  a  local  agency  is  invested  with  authority  to  grant  or 
consent  to  a  street  franchise,  it  may  impose  reasonable  conditions. 
Such  conditions  often  operate  to  reserve  to  the  municipality  a 
large  measure  of  control  over  a  public-service  corporation.53 

§66.  Police  ordinances  regulating  the  use  of  streets  and 
franchise  companies. — The  general  power  to  pass  police  or- 
dinances usually  possessed  by  a  municipal  corporation,  as  well  as 
the  power  often  granted  to  such  corporations  to  care  for  and  regu- 
late the  use  of  public  ways,  gives  authority  to  enact  reasonable 
regulations  having  for  their  object  the  convenience,  comfort, 
health  and  safety  of  the  public  in  the  use  of  streets.  Ordinances 
may  be  passed  limiting  speed ; 54  prohibiting  the  use  of  certain 
streets  by  a  designated  class  of  vehicles  55  or  for  transportation 
of  particular  matter ; 56  forbidding  the  standing  of  vehicles  for 

52  Domestic     Telegraph     Co.     v.  Co.  v.  Galveston,  90  Tex.  398,  39 

Newark,  49  N.  J.  L.  344,  8  Atl.  128,  S.  W.  96,  36  L.  R.  A.  33  (and  note)  ; 

and  cases  cited;  Newell  v.  Minne-  Pacific  Ry.  Co.  v.  Leavenworth,  1 

apolis,  etc.  R.  Co.,  35  Minn.  112,  27  Dillon,  C.  C.  393 ;  Indianola  v.  G. 

N.  W.  839 ;  Davis  v.  New  York,  14  W.  T.  &  P.  R.  Co.,  56  Tex.  594. 
N.  Y.  506 ;  Milhan  v.  Sharp,  27  N.        54  Comm.   v.  Worcester,  3  Pick. 

Y.  611 ;  State  v.  Trenton,  36  N.  J.  462. 

L.  79;   Boston  v.   Richardson,   13        ^  (Omnibus)  Comm.  v.  Stodder, 

Allen  146.    Compare,  2  Dillon,  Mun.  2  Gush.  562 ;  (automobiles)  Comm. 

Corp'ns   (4th  ed.)   §719.     See  An-  v.   Kingsbury,  199  Mass.  542;   or 

drews,  American  Law,  §  410.  may  assign  portions  of  a  street  to  a 

ss  Northern    Central    R.    Co.  v.  designated  kind  of  travel ;  Kohlhof 

Baltimore,  21  Md.  93 ;  Springfield  v.  v.  Chicago,  192  111.  249,  61  N.  E.  446. 
Springfield  St.  Ry.  Co.,  182  Mass.        sevandine,  Petr.  6  Pick.  187. 
41,  64  N.  E.  577 ;  Galveston  &  W.  R. 


78 


PUBLIC   CORPORATIONS. 


[§66 


longer  than  a  certain  period  of  time;57  regulating  the  use  of 
streets  by  abutters  during  building  operations,58  or  for  the  load- 
ing and  unloading  of  goods ;  regulating  bay  windows,  signs,  and 
like  overhead  projections  jutting  into  streets;59  compelling  occu- 
pants of  abutting  property  to  clean  sidewalks  of  snow  and  ice ; 60 
forbidding  smoking  in  the  streets,  or  spitting  on  sidewalks.61  A 
municipality  may  also,  where  its  grant  of  power  is  full  and  com- 
plete and  the  matter  is  not  otherwise  regulated,  exercise  a  large 
control  over  the  activities  of  public  service  corporations ; 62  may, 
for  example,  limit  the  speed  of  trains  within  city  limits;63  re- 
quire gates  or  flagmen  at  crossings;64  even,  in  some  states,  re- 
quire a  railroad  to  elevate  its  tracks  or  to  depress  them  below  a 
street  crossing.65  Control  of  street-franchise  companies  is  bet- 


67  Comm.  v.  Brooks,  109  Mass. 
355. 

ss  Wood  v%  Mears,  12  Ind.  515. 

59  Livingston  v.  Wolf,  136  Pa.  St. 
519,  20  Am.  St.  R.  937,  20 
Atl.  551;  Reimer's  App.  100 
Pa.  182;  (under  express  author- 
ity) Garrett  v.  Janes,  65  Md.  260, 
3  Atl.  597.  See  also,  Irvine  v. 
Wood,  51  N.  Y.  224,  10  Am.  Rep. 
603. 

eo  In  re  Goddard,  16  Pick.  504; 
State  v.  McMahon,  76  Conn.  97,  55 
Atl.  59 ;  Carthage  v.  Frederick,  122 
N.  Y.  268,  25  N.  E.  480. 

Contra,  State  v.  Jackman,  69  N. 
H.  318,  41  Atl.  347,  and  see  cases 
cited;  Gridley  v.  Bloomington,  88 
111.  554 ;  Chicago  v.  O'Brien,  111  111. 
532.  An  ordinance  may  require 
abutters  to  prevent  the  flow  of 
water  from  springs  upon  their  lands 
into  the  streets.  Skaggs  v.  Mar- 
tinsville,  140  Ind.  476,  49  Am.  St. 
R.  209,  49  N.  E.  241. 

si  The  Kansas  supreme  court  has 
held  that  citizens  have  a  common 
right  to  parade  the  streets  of  which 
they  cannot  be  deprived  by  ordi- 
nance. Anderson  v.  Wellington,  40 
Kas.  173,  19  Pac.  719.  But  the 
California  court  decided  differently 


as  to  the  beating  of  drums.  In  re 
Flaherty,  105  Cal.  558,  38  Pac.  981 ; 
and  see  cases  cited. 

62  (Requiring  street-railway  com- 
panies to  remove  snow,  dirt,  etc.) 
Chicago  v.  Union  Traction  Co.,  199 
111.  259,  65  N.  E.  243;  (requiring 
street  railway  companies  to  have 
conductors  on  all  cars).  State  v. 
Trenton,  53  N.  J.  L.  132,  20  Atl. 
1076;  State  v.  Sloan,  48  S.  C.  21,  • 
25  S.  E.  898. 

esTextor  v.  Baltimore  &  O.  R. 
Co.,  59  Md.  63 ;  Chicago,  B.  &  Q.  R. 
Co.  v.  Haggerty,  67  111.  113 ;  Buffalo 
v.  N.  Y.,  Lake  Erie  &  W.  R.  Co.,  152 
N.  Y.  276,  46  N.  E.  496;  Larkin  v. 
Burlington,  Cedar  Rapids  and 
Northern  R.  Co.,  85  Iowa,  492,  52 
N.  W.  480.  See  further,  Hayes  v. 
Michigan  Central  R.  Co.,  Ill  U.  S. 
228.  An  ordinance  which  limits  the 
speed  of  trains  is  not  an  unlawful 
interference  with  interstate  com- 
merce, and  the  transportation  of 
United  States  mails.  Chicago  & 
Alton  R.  Co.  v.  City  of  Carlinville, 
200  111.  314,  65  N.  E.  730. 

e*  Chicago  &  N.  W.  Ry.  Co.  v. 
Chicago,  140  111.  309,  29  N.  E.  1109. 

es  Chicago  v.  Jackson,  196  111. 
496,  63  N.  E.  1013. 


§  67]  STREETS  AND  HIGHWAYS.  79 

ter  secured,  however,  by  reservations  in  the  conditions  of  their 
franchises.66  All  such  regulations  are,  of  course,  subject  to  the 
general  rule  against  unreasonableness. 

§  67.  Vacation :  Power  of  municipal  authorities. — The  leg- 
islative power  to  vacate  streets  is  usually  expressly  conferred  upon 
municipalities  in  the  general  grant  of  authority  over  public  ways. 
"Without  an  express  mention  of  the  power,  it  will  not,  as  a  rule, 
be  deemed  to  vest.67 

The  vacation  of  a  street  involves  a  legislative  function  only; 
consequently  the  determination  of  a  city  council  as  to  the  ad- 
visability of  exercising  the  power  is  final,  if  it  be  reasonable.68 
As  a  rule,  no  one  whose  rights  are  merely  those  of  a  member  of 
the  public  is  entitled  to  damages  or  can  complain  of  the  decision 
to  close  a  street ;  for  example,  though  the  closing  of  a  street,  or 
a  portion  of  a  street,  makes  it  more  inconvenient  to  reach  property 
situated  on  another  street,  or  on  another  portion  of  the  same 
street,  no  legal  right  of  the  owners  of  such  property  is  infringed.69 

§68.  Vacation:  Rights  of  abutters. — In  some  cases,  it  has 
been  assumed  or  decided  that  the  power  to  vacate  and  stop  up  a 
public  way  is  superior  to  any  easement  of  abutters  for  access, 
light  and  air ;  and  that  even  a  complete  shutting  off  of  abutting 
property  from  connection  with  the  public  ways  by  the  closing  of 
a  street  would  not  entitle  the  owners  to  damages  or  to  an  in- 
junction.70 But  the  tendency  seems  to  be  to  recognize  the  abut- 
ter's  easement  as  a  property  right  superior  to  the  authority  of 
the  government  to  shut  off  all  access  to  his  land,  and  to  require 

66  See  §  65,  supra.  v.  O'Flynn,  119  111.  200.    Compare 

67  Louisville  v.   Bannon,  99  Ky.  Helnrich  v.  St.  Louis,  125  Mo.  424, 
74,  35  S.  W.  120 ;  Hoboken  Land,  28  S.  W.  626 ;  In  re  Melon  St.,  182 
etc.,  Co.  v.  Mayor,  36  N.  J.  L.  540.  Pa.  397,  38  Atl.  482,  38  L.  R.  A.  275. 

es  Glasgow  v.  St.  Louis,  107  Mo.  The  fact  that  such   owners  have 

198;  Kokomo  v.  Mahan,  100  Ind.  been  assessed  for  betterments  due 

242.  to  the  opening  of  the  street  gives 

69  McGee's  App.  114  Pa.  470,  8  them  no  additional  right.    Chicago 

Atl.   237;   Polack  v.  Trustees,  48  v.   Union  Building  Ass'n,  102  111. 

Cal.  490;  Coster  v.  Albany,  43  N.  379. 

Y.  399 ;  Fearing  v.  Irwin,  55  N.  Y.        TO  Levee  Dist.  v.  Farmer,  101  Cal. 

486;  Kimball  v.  Homan,  74  Mich.  178,  35  Pac.  569,  23  L.  R.  A.  388; 

699,    42   N.    W.   167 ;    Gerhard   v.  Selden  v.  Jacksonville,  28  Fla.  558, 

Commrs.,  15  R.  I.  334;  E.  St.  Louis  14  L.  R.  A.  370  (see  note). 


PUBLIC   CORPORATIONS. 


[§68 


that  when  that  is  done  compensation  be  paid  him  as  for  a  tak- 
ing.71 Some  authorities  have  tried  to  distinguish  the  cases  in 
which  the  street  was  established  by  dedication  by  the  original 
owner  of  a  tract  of  land,  who  had  platted  the  tract  and  sold  abut- 
ting lots  to  various  purchasers,  on  the  ground  that  in  such  cases 
the  abutter  bad  acquired  a  private  equitable  easement  not  de- 
pendent on  the  public  nature  of  the  way.72 

Statutes  often  provide  expressly,  or  are  construed  to  provide, 
that  damages  shall  be  paid  to  abutters  for  any  injury  to  property 
caused  by  vacating  a  street.73 


71  Egerer  v.  N.  Y.  Central,  etc.,  R. 
Co.,  130  N.  Y.  108,  29  N.  E.  95,  14 
L.  R.  A.  381 ;  Bigelow  v.  Ballerino, 
111  Gal.  559,  44  Pac.  307 ;  Pearsall 
v.  Eaton  Co.,  74  Mich.  558,  42  N.  W. 
77;  Bannon  v.  Rohmeiser,  90  Ky. 
48,  29  Am.  St.  R.  355,  13  S.  W.  444 ; 
Renssalaer  v.  Leopold,  106  Ind.  29, 
5  N.  E.  761 ;  Indianapolis  v.  Croas, 
7  Ind.  9;  Haynes  v.  Thomas,  7  Ind. 
38 ;  Elliott,  Roads  and  Streets  (2nd 
ed.)  §  877.  Even  in  case  the  prop- 
erty also  borders  on  another  street 


(corner  lot).  Heinrich  v.  St.  Louis, 
125  Mo.  424,  28  S.  W.  626 ;  but  see 
cases  cited  to  last  section. 

72  Levee  Dist.  v.  Farmer,  101  Cal. 
178,  35  Pac.  569,  23  L.  R.  A.  388; 
and  see  Bradbury  v.  Walton,  94  Ky. 
163,  at  167. 

73  State  Lunatic  Hospital  v.  Wor- 
cester Co.,  1  Met  437 ;  Butterworth 
v.  Bartlett,  50  Ind.  537 ;  In  re  Con- 
cord's Petition,  50  N.  H.  530 ;  In  re 
Melon  St.,  182  Pa.  397,  38  Atl.  482, 
38  L.  R.  A.  275, 


CHAPTER  VIII. 

MUNICIPAL  IMPROVEMENTS  AND   SERVICES. 


§  73.  Wharves  and  ferries. 

74.  Powers    of    school    boards: 
Text-books. 


§  69.  Measures  of  state  government 

70.  Measures  of  purely  local  con- 

cern. 

71.  Contracts  for  water  and  light. 

72.  Power    to    maintain    water- 

works, and  light-plants. 


§69.  Measures  of  state  government. — We  have  seen  that, 
beside  caring  for  streets  and  highways,  a  municipal  corporation 
administers  a  number  of  other  functions  of  state  government 
within  its  territory — many  under  the  police  power  of  the  state. 
It  establishes  schools,  supports  dependent  classes,  maintains 
health,  police,  and  fire-departments,  militia,  courts,  and  some- 
times wharves  and  bridges.  These  are  services  in  which  the 
general  public  is  directly  interested.  Recently  the  practice  has 
grown  of  assigning  some  of  them — especially  school,  health,  and 
police  departments — to  independent  boards  of  officers,  governed 
directly  by  statute,  and,  in  the  case  of  police  departments,  ap- 
pointed by  the  governor.  As  they  are  matters  of  state  interest, 
any  local  agency  charged  with  the  care  of  them  acts  merely  as  an 
agency  of  state  government,  whether  its  authority  be  permissive 
or  imperative.1 

In  most  cases  these  undertakings  are  covered  by  some  clause  in 
the  municipal  charter.  How  far  the  delegation  of  a  general  po- 
lice power  would  alone  authorize  school,  health,  police,  or  fire 
service,  depends  on  the  view  taken  in  the  particular  jurisdiction.2 
The  maintenance  of  militia  companies  and  armories  requires  ex- 
press authority,3  and  in  executing  such  authority  the  local  gov- 
ernment acts  as  an  agent  of  the  state.4  Usually  all  undertakings 

1  See   cases   in   the   chapter   on        s  Stetson  v.  Kempton,  13  Mass. 
"Legislative    Control";    especially    272;  Claflin  v.  Hopkinton,  4  Gray, 
Commonwealth    v.    Plaisted,    148    502. 

Mass.  375 ;  People  v.  Hurlburt,  24        *  Chicago  v.  Chicago  Ball  Club, 
Mich.  44.  196  111.  54. 

2  As  to  fire  engines,  see  supra 
§54. 


81 


82  PUBLIC   COEPOEATIONS.  [§70 

which  are  customarily  matters  exclusively  for  the  attention  of 
the  central  state  government  require  express  authority;  for  ex- 
ample, the  stimulation  of  patriotism  by  means  of  patriotic  cele- 
brations,5 the  entertainment  of  public  guests.6 

§  70.  Measures  of  purely  local  concern. — Municipal  corpora- 
tions were  originally  organized  to  administer  to  the  internal  needs 
of  a  compact,  urban  population,  as  a  community  separate  and 
distinct  from  the  public  at  large.  Some  of  the  needs  which  they 
attended  to  came  to  be  later  the  proper  concern  of  the  state  gov- 
ernments, under  the  principle  of  the  last  section.  But  they  main- 
tained many  works  of  local  service  of  such  a  nature  as  to  be  of 
purely  local  interest ;  and  in  which,  since  the  establishment  of  state 
governments,  it  has  been  considered  the  state  or  the  public  at 
large  has  no  direct  interest.7 

Many  of  these  works  are  so  sanctioned  by  those  usages  which 
are  impliedly  confirmed  by  our  constitutions  and  general  statutes, 
as  to  require  no  special  or  express  authorization.  Of  this  class  are 
market-houses,  hay  scales,  town  pumps,  town  clocks,  commons, 
playgrounds,  cemeteries,  fire  engines,  town  and  city  halls,  and 
even  sewers.8  It  is  customary  to  seek  for  some  particular  clause 
in  a  charter  to  justify  a  work  of  this  class,  (but  even  then  it  is 
usage  that  governs  the  construction)  ;  for  example,  to  place  the 
maintenance  of  sewers  under  authority  to  keep  streets  in  repair, 
even  where  they  are  largely  for  the  service  of  abutters ;  9  or  under 
the  power  to  pass  police  measures  to  protect  health ; 10  to  put 
fire  service,11  and  markets,12  under  the  police  power. 

In  modern  times,  other  enterprises  of  purely  local  concern  have 
been  added  to  this  class  by  express  statutory  authority;  such  as 


5  Hodges  v.  Buffalo,  2  Denio,  110 ;  port,  12  Pick.  227;   (fire  engines) 

Hood  v.  Lynn,  1  Allen,  103;  Lib-  Allen   v.    Taunton,    19   Pick.   485; 

erty  Bell,  23  Fed.  843.  (sewers)    Boston  v.  Shaw,  1  Met. 

«  Gamble  v.  Watkins,  7  Hun.  448.  130;   (artesian  well)  Livingston  v. 

f  See   Andrews,   American   Law,  Pippin,  31  Ala.  542. 

§  403 ;   1  Dillon,  Municipal  Corpo-  »  Cone  v.  Hartford,  28  Conn.  363 ; 

rations  (4th  ed.),  §  66  et  seq;  Good-  Fisher    v.    Harrisburg,    2    Grant's 

now,  Municipal  Home  Rule.  Cases   (Pa.),  291. 

s  Spaulding  v.  Lowell,  23  Pick.  10  See  2  Dillon,  Municipal  Corp'ns, 

71;   (city  hall)   Torrent  v.  Muske-  (4th  ed.),  §806. 

gon,  47  Mich.  115.  10  X.  W.  132 :  n  Supra,  §  54. 

(town  clock)  Willard  v.  Newbury-  12  Supra,  §53. 


§  71]  MUNICIPAL   IMPROVEMENTS   AND   SERVICES.  83 

libraries,  hospitals,13  waterworks,  gas  and  electric  light  systems. 

§  71.  Contracts  for  water  and  light. — The  power  to  light  the 
streets  and  public  places,  which  is  generally  conferred  upon 
municipalities,  is  usually  exercised,  either  under  implication  of 
authority  or  under  authority  in  terms,  by  a  contract  with  an  in- 
dividual or  a  corporation  for  a  supply  of  gas  or  electric  light; 
and  the  contract  necessarily  includes  a  grant  to  the  latter  of  the 
right  to  use  the  streets.  Similarly,  the  power  to  extinguish  fires 
and  to  supply  public  buildings  with  water  is  exercised  by  making 
a  contract  for  a  supply  of  water,  which  also  involves  a  franchise. 
The  statutory  authority  in  these  cases  usually  extends  to  con- 
tracting also  for  supplying  light  and  water  to  the  inhabitants. 
The  rule  limiting  the  period  of  time  which  the  arrangement  may 
cover  is  given  in  a  later  section.14  By  the  terms  of  these  con- 
tracts, and  by  conditions  inserted  in  the  grant  of  street  franchises, 
municipalities  often  reserve  power  to  regulate  by  ordinance  the 
rates  charged  to  consumers.13  Regulations  under  a  reservation 
must,  of  course,  be  reasonable.  The  general  power  of  the  legis- 
lature to  regulate  rates  of  public  service  corporations  cannot  be 
wielded  by  a  local  corporation  unless  an  express  grant  of  the 
power  has  been  made  to  it ; 16  and  under  such  an  express  grant 
the  municipality  is  limited  by  the  rule  against  unreasonable  ordi- 
nances, as  well  as  by  the  constitutional  limitation  which  restricts 
the  legislature,  in  such  cases,  from  making  such  reductions  as 
operate  to  confiscate  property.17 

How  far  a  municipality  may  bind  itself  against  regulating  or 
questioning  the  rates  of  such  franchise  companies  by  fixing  a  rate 
in  the  original  ordinance  or  contract,  will  be  considered  in  a  later 
section.18 

is  But  no  express  authority  is  for  lighting  the  streets  and  fur- 
necessary  to  establish  and  maintain  nishing  the  inhabitants  with  gas 
libraries  or  hospitals  under  trusts,  or  other  light,  and  "to  regulate  and 
See  supra,  §  44.  control  the  use  thereof,"  will  not 

i*  See  infra,  §§  77,  78.  enable  the  city  to  enact  ordinances 

is  See  Danville  v.  Danville  Water  fixing  the  price  of  gas  to  be  charged 

Co.,  178  111.  299,  53  N.  E.  118,  180  consumers.     Tacoma   Gas  &  Elec. 

111.  235,  54  N.  E.  224;   S.  C.  180  L.  Co.  v.  Tacoma,  14  Wash.  2S8, 

TJ.    S.   619;   Freeport   v.   Freeport  44  Pac.  655. 

Water  Co.,  186  111.  179,  57  N.  E.        IT  Chicago,  M.  &  St.  P.  Ry.  Co. 

862 ;  S.  C.  180  U.  S.  588.  v.  Minn.,  134  U.  S.  418 ;   State  v. 

i«  In  re  Pryor,  55  Kan.  724,  29  Cincinnati  Gas  Co.,  18  Ohio  St.  262. 
L.  R.  A.  398.  Authority  to  provide  is  See  infra,  §§  77,  78. 


84  PUBLIC   CORPORATIONS.  [  §  72 

§  72.  Power  to  maintain  water-works  and  gas  and  electric- 
light  plants. — Power  to  purchase  or  erect  these  plants  for 
service  to  the  corporation  and  its  inhabitants  individually,  is  not 
possessed  by  a  municipal  corporation,  according  to  the  better 
view,  unless  specially  granted.  The  use  of  streets  and  the  power 
of  eminent  domain  are  usually  required.  But  the  decisions,  under 
various  laws  and  practices,  are  not  in  harmony.  An  Indiana  de- 
cision19 and  a  Massachusetts  one20  present  the  extremes  of  the 
degrees  of  liberality  in  judicial  views  on  the  subject.  The  In- 
diana court  held  that  the  mere  incorporation  of  a  city  confers 
impliedly  the  general  police  power  of  the  state,  which  includes 
authority  to  light  streets  in  order  to  prevent  crime,  and  to  sell 
electric-light  to  inhabitants  in  order  to  preserve  their  health,  and 
that  it  is  necessarily  incidental  that  the  corporation  should  main- 
tain a  plant  of  its  own  for  these  purposes.  The  Massachusetts  de- 
cision is  to  the  effect  that  an  early  statute  giving  to  a  town  au- 
thority "to  maintain  street-lamps,"  does  not  enable  it  to  main- 
tain an  electric-light  plant  for  the  purpose  of  supplying  street- 
lights. Both  cases  have  been  criticized  in  a  well  reasoned  Ne- 
braska decision,21  which  held  that  express  authority  to  light 
streets  contained  authority  to  maintain  a  plant,  but  did  not  give 
authority  to  supply  service  to  inhabitants  for  domestic  purposes. 
Many  courts  have  decided  that  power  to  provide  for  "lighting 
the  streets,"22  or  "to  provide  the  city  with  water,"23  will  au- 
thorize a  city  to  construct  its  own  plant  for  that  purpose. 

There  is  no  doubt  of  the  power  of  the  legislature  to  authorize 
cities  to  purchase  or  construct  such  plants.24  The  erection  of  an 

is  Crawfordsville  v.  Braden,  130  23  Atlantic   City   W.    W.    v.    At- 

Ind.  149,  28  N.  E.  849.  lantic  City,  39  N.  J.  Eq.  367 ;  Hall 

20  Spaulding     v.     Peabody,     153  v.  Houghton,  8  Mich.  451 ;  Smith  v. 
Mass.  129,  26  N.  E.  421.  Mayor,   88  Term.  464 ;   Putnam  v. 

21  Cristensen  v.  Fremont,  45  Neb.  Grand  Rapids,  58  Mich.  417. 

160,  63  N.  W.  364.  The  Indiana  de-  2*  Mitchell  v.  Negaunee,  113  Mich, 
cision  is  clearly  contrary  to  the  359,  71  N.  W.  646;  Opinion  of  Jus- 
general  view.  White  v.  Meadville,  tices,  150  Mass.  392,  8  L.  R.  A. 
177  Pa.  643.  487;  Linn  v.  Chambersburg,  160 

22  Parkersburg  Gas  Co.  v.  Park-  Mass.  511,  25  L.  R.  A.  217 ;  Peabody 
ersburg,  30  W.  Va.  435;   Saginaw  v.  Westerly  Water  Works  Co.,  20 
G.  L.  Co.  v.  Saginaw,  28  Fed.  Rep.  R.     I.    176,    37    Atl.    807.       Sup- 
252 ;  Crawfordsville  v.  Braden,  130  plying  the  inhabitants  with  light 
Ind.  149,  28  N.  E.  849,  14  L.  R.  A.  and  water  is  a  municipal  function 
268.  which  may  properly  be  delegated 


§  72]  MUNICIPAL   IMPROVEMENTS   AND   SERVICES.  85 

electric-light  plant  to  supply  a  city  with  light  for  use  in  the 
streets  and  public  places  and  in  the  homes  and  places  of  business 
of  the  inhabitants  is  a  municipal  purpose  for  which  bonds  may 
be  issued  and  taxation  authorized.25  There  is  authority  to  the 
effect  that  to  furnish  the  inhabitants  with  light,  would  be  to  en- 
gage in  a  private  enterprise.26  But,  as  has  been  said,27  for  a  city 
to  meet  the  demand  for  wholesome  water  "  is  to  perform  a  public 
act  and  confer  a  public  blessing.  *  *  *  It  is  not  strictly  a 
governmental  or  municipal  function  which  every  municipality 
is  under  obligation  to  assume  and  perform,  but  it  is  very  closely 
akin  to  it,  and  should  always  be  recognized  as  within  the  scope 
of  its  authority  unless  excluded  by  some  positive  law.  *  *  * 
It  cannot  be  said  that  the  city  in  doing  so  is  engaging  in  a  private 
enterprise  or  performing  a  municipal  function  for  a  private  end." 
A  city  with  authority  to  furnish  water  for  its  inhabitants  has 
no  authority  to  carry  water  outside  of  its  limits  for  the  purpose 
of  supplying  the  inhabitants  of  another  municipality.28  But 
when  a  town  succeeds  to  the  business  of  a  water  company  under 
a  statute  which  authorizes  it  to  furnish  water  to  any  person  or 
corporation  within  its  limits,  it  may  deliver  water  to  the  corpo- 
ration within  its  limits,  although  a  part  of  the  water  is  used  be- 
yond the  city  limits  and  in  another  municipal  corporation.29 

The  reservation  in  the  grant  of  a  franchise  to  a  water  company 
of  a  right  to  purchase  the  plant  at  any  time  after  the  lapse  of  a 
stated  period  imposes  no  duty  upon  the  town  to  purchase,  and 
does  not  justify  the  inference  that  the  city  can  only  provide  itself 
with  water- works  by  purchasing  from  the  company.30  It  has  re- 


to    a    municipality.      Brenham    v.        27  Smith  v.  Nashville,  88  Term. 

Brenham  Water  Co.,  67  Tex.  542 ;  464,  7  L.  R.  A.  469 ;  Fire  Ins.  Co. 

Opinion  of  Justices,  150  Mass.  392,  v.  Keeseville,  148  N.  Y.  46 ;  Jack- 

8  L.  R.  A.  487 ;  Tacoma  v.  Tacoma  sonville  Elec.  L.  Co.  v.  Jacksonville 

L.  &  W.  Co.,  15  Wash.  499 ;  Long  v.  36  Fla.  229,  30  L.  R.  A.  540 ;  Thomp- 

Duluth,   48   Minn.   280,   51   N.   W.  son-Houston  Elec.  L.  Co.  v.  Newton, 

Rep.   913 ;    State   v.   Hamilton,   47  42  Fed.  Rep.  723. 

Ohio  St.  52,  23  N.  E.  Rep.  935.    As        28  Haupt's    Appeal,    125    Pa.    St. 

to  lighting  public  buildings,  see  St.  211,  3  L.  R.  A.  536. 

Paul  G.  L.  Co.  v.  McCardy,  62  Minn.         29  Lawrence     v.     Methuen,     166 

509.  Mass.  206. 

25  Jacksonville  v.  Electric  Light        so  Long  v.  Duluth,  49  Minn.  280 ; 
Co.,  36  Fla.  229,  30  L.  R.  A.  540.  Syracuse  Water   Co.   v.    Syracuse, 

26  Maudlin  v.  Greenville,  33  S.  C.  116  N.  Y.  167,  22  N.  E.  Rep.  381. 
1,  8  L.  R.  A.  291. 


86  PUBLIC   CORPORATIONS.  [§73 

cently  been  held  that  a  statute  allowing  a  city  to  acquire  a  water 
plant  only  by  purchase  from  private  parties  to  whom  it  has 
granted  a  franchise  or  with  whom  it  has  entered  into  a  contract 
is  in  violation  of  a  constitutional  provision  prohibiting  the  legis- 
lature from  levying  a  tax  upon  the  people  of  a  municipality  for 
a  municipal  purpose  without  their  consent.31  A  city  may  con- 
demn the  plant  of  a  private  gas  or  water  company  under  the 
power  of  eminent  domain.32  In  Pennsylvania  it  is  held  that 
when  a  borough  has  contracted  with  a  water  company  for  a  sup- 
ply of  water  and  reserved  the  right  to  purchase  the  plant  after 
twenty  years,  and  the  company  has  laid  its  pipes  and  mains  in 
the  streets,  it  cannot  during  that  period  erect  and  maintain  a 
system  of  water- works  of  its  own.33 

§  73.  Wharves  and  ferries. — A  city  cannot  carry  on  a  pub- 
lic wharf  or  ferry  and  charge  tolls  and  fees  for  its  use  without 
special  authorization  by  the  legislature.34  "It  is  a  power  of  a 
special  and  extra-municipal  nature. ' '  35  The  right  to  erect  and 
regulate  wharves  and  appoint  wharfingers  may  include  the  right 
to  impose  and  collect  toll.36 

§  74.  Powers  of  school  boards — Text-books. — The  powers  of 
school  boards  and  trustees  are  purely  statutory,37  and  vary  great- 
ly in  the  different  states.  The  board  generally  has  authority  to 
prescribe  the  text-books  which  shall  be  used  in  the  district.  The 

*  si  Helena  Consolidated  Water  Co.  34  Webb  v.  Demopolis,  95  Ala.  116, 

v.  Steele,  20  Mont.  1,  49  Pac.  382,  21  L.  R.  A.  62;  The  Geneva,  Am. 

37  L.  R.  A.  412.  Law  Reg.,  Sept.,  1883,  annotated; 

32  In  re  Brooklyn,  143  N.  Y.  596,  Railroad  Co.   v.  Ellerman,  105  U. 

26  L.  R.  A.  271.  S.  166 ;  Turner  v.  People's  Ferry,  21 

saMetzger  v.   Beaver  Falls,   178  Fed.   90;    Williams   v.    New    York 

Pa.  St.  1 ;  White  v.  Meadville,  177  Ferry  Co.,  105  N.  Y.  419 ;  Snyder  v. 

Pa.  St.  643,  34  L.  R.  A.  567 ;  Wilson  Rockport,  6  Ind.  237. 

v.  Borough  of  Rochester,  180  Pa.  35  1  Dillon,  Mun.  Corp.  (4th  ed.), 

St.  509.  But  this  was  on  the  ground  §  67 ;  The  Wharf  Case,  3  Bland  Ch. 

that   the   borough   in   choosing   to  361;   The  Empire   State,   1  Newb. 

contract  rather  than  erect  a  plant,  Adm.  541. 

had  exhausted  the  discretion  given  30  Municipality   v.   Pease,   2  La. 

by  the  statute  as  to  how  it  should  Ann.  538 ;  Muscatine  v.  Hershey,  18 

procure  a  supply  of  water.    As  to  Iowa,  39.    As  to  the  proper  uses  of 

power  to  make  a  contract  excluding  a  public  wharf,  see  Illinois  v.  Canal 

itself    from    competition    with    a  Co.,  2  Dill.  (C.  C.)  70. 

water  company  for  a  term  of  years,  37  Barry  v.  Good,  89  CaL  215. 
see  infra,  §  77. 


§  74]  MUNICIPAL   IMPROVEMENTS   AND   SERVICES.  87 

duty  of  establishing  and  maintaining  a  "general,  uniform  and 
thorough  system  of  public  free  common  schools, ' '  imposed  by  the 
constitution  upon  the  legislature,  does  not  necessarily  imply  that 
that  body  shall  establish  and  maintain  a  uniform  system  of  text- 
books throughout  the  state.  A  uniform  system  of  free  common 
schools  does  not  require  that  the  text-books  used  in  the  schools 
shall  be  uniform  throughout  the  state.38  When  the  legislature 
has  not  prescribed  what  books  shall  be  used,  and  has  not  dele- 
gated the  power  to  any  other  person  or  body,  the  trustees  of  a 
school  district  may  do  so  by  virtue  of  the  general  control  over 
the  school  given  them  by  statute.39  The  power  may  be  delegated 
by  the  legislature  to  a  school-book  commission.40  An  act  of  the 
legislature  prescribing  the  text-books  which  shall  be  used  in  the 
public  schools  does  not  violate  the  right  of  local  self-government. 
It  is  a  power  which  may  be  conferred  upon  a  school  board,  and  in 
such  case  the  courts  will  not  interfere.41  The  state  may  prescribe 
the  text-books  and  make  an  exclusive  contract  to  furnish  the 
books  for  a  certain  term.42  The  school  directors  may  be  com- 
pelled by  mandamus  to  introduce  the  books  which  have  been 
adopted  according  to  statute,43  and  a  pupil  may  be  suspended  for 
refusing  to  procure  a  prescribed  book.44  A  parent  cannot  insist 
that  his  child  shall  be  permitted  to  use  a  text-book  other  than  that 

ss  Campana    v.    Calderhead,    17  *°  State  v.  Bronson,  115  Mo.  271. 

Mont.  548,  36  L.  R.  A.  277,  44  Pac.  41  Cincinnati  Board  of  Education 

84;   Curryer  v.  Merrill,  25  Minn.  v.  Minor,  23  Ohio  St.  211,  13  Am. 

1,    33    Am.    Rep.    450;    State    v.  Rep.  233. 

Haworth,  122  Ind.  462,  7  L.  R.  A.  *2  Curryer  v.  Merrill,  25  Minn.  1, 

240 ;  State  v.  Womack,  4  Wash.  19 ;  33  Am.  Kep.  450 ;  State  v.  Haworth, 

Effingham   v.   Hamilton,   68   Mich.  122  Ind.  462,  7  L.  R.  A.  240 ;  State 

523 ;  Reno  County  School  District  v.  Blue,  122  Ind.  600. 

v.  Shadduck,  25  Kan.  467 ;  Topeka  43  state  v.  Roberts,  74  Mo.  21. 

Board  of  Education  v.  Welch,  51  For  the  construction  of  particular 

Kan.  797 ;  Powell  v.  Board  of  Edu-  statutes  regulating  the  adoption  of 

cation,  97  111.  375,  37  Am.  Rep.  123 ;  text-books,  see  Iverson  v.  Indianap- 

Richards  v.  Raymond,  92  111.  612,  olis  School  Commissioners,  39  Fed. 

34  Am.  Rep.  151.  Rep.  735 ;  People  v.  State  Board  of 

ss  Campana    v.    Calderhead,    17  Education,  49  Cal.  684;   Jones  v. 

Mont.  548,  36  L.  R.  A.  277,  anno-  Detroit    Board    of    Education,    88 

tated,     44     Pac.     84;     State     v.  Mich.  371. 

Webber,  108  Ind.  31,  58  Am.  Rep.  «  But  see  Ruilson  v.  Post,  79  Ind. 

30;  State  v.  Dixon  County  School  567;  Trustees  v.  People,  87  Iowa, 

District,  31  Neb.  552.  305. 


88 


PUBLIC   CORPORATIONS. 


L§74 


prescribed  by  the  board.45  The  reading  of  the  Bible  as  a  text- 
book in  the  public  schools  violates  the  constitutional  provision 
prohibiting  sectarian  instruction,46  but  a  requirement  that  the 
Bible  shall  be  used  as  a  mere  reading  book  is  valid.47  A  school 
board  may  prescribe  reasonable  regulations  for  the  health  of  the 
children  and  the  community.48  For  this  purpose  it  may  require 
all  pupils  to  be  vaccinated  as  a  condition  precedent  to  the  right 
to  attend  school,  although  there  are  no  present  indications  of  an 
epidemic.49  But  it  has  been  held  that  such  a  requirement  is  unrea- 
sonable, unless  it  appears  that  small-pox  actually  exists  or  there 
is  reasonable  cause  to  anticipate  its  appearance.50 


45  Lake  View  School  Trustees  v. 
People,  87  111.  303.    See  Reno  Coun- 
ty School  District  v.  Shadduck,  25 
Kan.   467;   Dobbs   v.    Stauffer,   24 
Kan.  127. 

46  Weiss  v.  Edgerton  School  Dis- 
trict Board,  76  Wis.  177,  7  L.  R.  A. 
330,  20  Am.  St.  Rep.  41,  note,  p.  69. 
As  to  what  constitutes  a  sectarian 
school,  see  Cook  Co.  v.  Industrial 
School,  125  111.  540,  8  Am.  St.  Rep. 
386,  annotated. 

47  Donahoe  v.  Richards,  38  Me. 
379,  61  Am.  Dec.  256.    See  Board  v. 
Minor,  23  Ohio  St.  211,  13  Am.  Rep. 
233.     A  statute  to  the  effect  that 
the  Bible  shall  not  be  excluded,  but 
that  no  pupil  shall  be  required  to 


read  it  contrary  to  the  wishes  of  his 
parents,  is  constitutional.  Moore  v. 
Monroe,  64  Iowa,  364,  52  Am.  Rep. 
444. 

48  Duffield  v.  Williamsport  School 
District,  162  Pa.  St.  476,  25  L.  R.  A. 
152. 

4»Bissell  v.  Davidson,  65  Conn. 
183,  29  L.  R.  A.  251. 

so  Potts  v.  Breen,  167  111.  67,  60 
111.  App.  201,  47  N.  E.  81, 
Power  of  school  directors  to  con- 
tract, see  Everts  v.  District  Town* 
ship,  77  Iowa,  37,  14  Am.  St.  Rep. 
264.  As  to  separate  schools  for 
black  and  white  children,  see  Lehew 
v.  Brummell,  103  Mo.  546,  23  Am. 
St.  Rep.  895,  annotated. 


CHAPTER  IX. 

DELEGATION  AND  RESTRICTION  OF  POWER  AND  ALIENATION 

OF   PROPERTY. 


75.  Delegation  of  discretion. 

76.  Illustrations. 

77.  Restricting  future  exercise  of 

discretion. 

78.  By   contract   for   a   term   of 

years. 


§  79.  By  exclusive  privileges. 

80.  Power    to    sell    and    convey 

property. 

81.  Power  to  let  for  income. 

82.  Alienation  by  law:  Creditors. 


§  75.  Delegation  of  discretion. — As  discretionary  powers 
conferred  by  the  legislature  upon  a  public  corporation  are  in  the 
nature  of  public  trusts,  and  the  legislative  intention  must  be  to 
repose  confidence  in  the  action  of  the  corporate  body,  the  general 
rule  is  that  the  corporation  must  itself  exercise  such  powers,  and 
cannot  delegate  them  to  any  other  body  or  person.1  But  a  dis- 
tinction is  made  between  acts  which  involve  discretion  and  those 
which  are  merely  ministerial  in  their  nature.  Thus,  in  a  case2 
which  involved  the  rights  of  a  council  to  direct  the  mayor  and 
chairman  of  the  committee  on  streets  and  alleys  to  make  a  con- 
tract on  behalf  of  the  city  for  the  construction  of  sidewalks,  it 
was  said :  "It  is  true  that  the  council  could  not  delegate  all  the 
power  conferred  upon  it  by  the  legislature,  but,  like  every  other 
corporation,  it  could  do  its  ministerial  work  by  agents.  Nothing 
more  was  done  in  this  case.  The  council  directed  the  pavements, 
ordering  them  to  be  constructed  of  one  or  the  other  of  several 
materials,  but  giving  to  the  owners  of  abutting  lots  the  privilege 
of  selecting  which,  and  reserving  to  the  chairman  of  the  commit- 
tee authority  to  select,  in  case  the  lot-owners  failed.  The  council 
also  directed  how  the  preparatory  work  should  be  done.  There 
was,  therefore,  no  unlawful  delegation  of  power." 

i  St.  Louis  v.  Russell,  116  Mo.    653 ;  Lauenstein  v.  Fond  du  Lac,  28 
248,   20   L.   R.   A.   721   and   note;     Wis.  336. 


Thompson  v.  Schermerhorn,  6  N. 
Y.  92,  55  Am.  Dec.  385 ;  McCrowell 
v.  Bristol,  89  Va.  652,  20  L.  R.  A. 


2  Hitchcock  v.  Galveston,  96  U. 
S.  341;  24  L.  ed.  659;  Green  v. 
Ward,  82  Va.  324. 


89 


90  PUBLIC   CORPORATIONS.  [§76 

§76.  Illustrations. — There  are  many  cases  illustrating  the 
principles  of  the  preceding  section.  Thus,  a  council  having  au- 
thority to  lease  certain  rooms  for  city  purposes  may  appoint  a 
committee  to  procure  furniture  and  arrange  the  rooms.3  So  the 
ministerial  duty  of  caring  for  streets  may  be  delegated  by  a  city 
council  to  a  street  committee  composed  of  members  of  the  board 
of  aldermen.4  The  general  discretion  of  a  city  council  as  to 
licensing  the  sale  of  liquor,  expressly  conferred  on  it  by  statute, 
cannot,  however,  be  delegated  to  the  mayor.5  But  a  city  may,  by 
ordinance,  empower  the  mayor  to  issue  licenses,  where  he  is  given 
only  the  ministerial  power  of  issuing  the  license  upon  certain 
prescribed  conditions  being  complied  with.6 

When  the  mayor  and  aldermen  are  authorized  to  select  a  ' '  suit- 
able site, ' '  and  erect  thereon  a  market  building,  they  cannot  dele- 
gate the  discretion  to  choose  the  site  to  commissioners.7  The  coun- 
cil cannot  delegate  to 'a  board  of  public  works  a  power  given  it,  in. 
conjunction  with  a  board  of  education,  to  choose  a  school-house 
site.8  The  power  to  determine  which  of  several  railroad  compa- 
nies shall  receive  municipal  aid  cannot  be  delegated.9  Nor  can  a 
city  with  authority  to  build  and  maintain  a  wharf  lease  the  same 
to  some  person,  and  authorize  the  lessee  to  fix  the  rates  of  wharf- 
age.10 A  city  cannot  delegate  its  power  to  establish  the  grade 
of  streets,11  nor  to  prescribe  the  width  of  sidewalks,12  nor  to 

s  Edwards  v.  Watertown,  24  Hun  221,  20  N.  E.  115,  3  L.  R.  A.  261 ; 

(X.  Y.),  426.  Newton  v.   Belger,  143  Mass.  598, 

4  Tate  v.  Greensboro,  114  N.  C.  10  N.  E.  464 ;  compare,  Comm.  v. 

392,  24  L.  R.  A.  671.  Parks,  155  Mass.  531,  30  N.  E.  174. 

s  State  v.  Bayonne,  44  X.  J.  L.  ~>  State  v.  Paterson,  34  X.  J.  L. 

114;   Kinmundy  v.  Mahan,  72  111.  163. 

462 ;  Day  v.  Green,  4  Gush.  433.  8  Lauenstein  v.  Fond  du  Lac,  28 

e  Swarth  v.  People,  109  111.  621.  Wis.  336. 

When  a  city  council  seeks  to  regu-  9  Monadnock  Ry.  Co.  v.  Peterbor- 

late  a  given  occupation  by  forbid-  ough,  49  X.  H.  281. 

ding  it  unless  a  license  be  procured  10  Matthews    v.    Alexandria,    68 

from  an  executive  authority,   the  Mo.  115,  30  Am.  Rep.  776. 

ordinance  will  be  void  unless  it  pre-  "  Lippelman     v.     Cincinnati,     4 

scribes    the    circumstances    under  Ohio  C.  C.  327;  Thomson  v.  Boon- 

which  the  license  shall  be  granted,  ville,  61  Mo.  282 ;  Zabel  v.  Louisville, 

the  duration  of  the  same,  and  the  13  Ky.  Law,  385,  17  S.  W.  212,  13 

fee  to  be  charged,  if  any;  so  as  to  L.  R.  A.  668. 

leave  to  the  executive  officer  only  a  12  McCrowell  v.   Bristol.  89  Va. 

ministerial    duty    to    decide   upon  652,  20  L.  R.  A,  653. 
facts.    See  Bills  v.  Goshen,  117  Ind. 


§  77]  DELEGATION   AND   RESTRICTION   OP   POWER.  91 

decide  how  and  when  streets  shall  be  improved,13  nor  to  decide 
the  kind  of  paving  blocks  which  shall  be  used,14  nor  to  deter- 
mine the  dimensions  and  material  of  a  sewer.15 

§  77.  Restricting  future  exercise  of  discretion. — Analogous 
to  the  rule  that  a  public  corporation  cannot  delegate  a  discre- 
tionary authority,  is  the  rule  that  it  cannot  restrict  the  future 
exercise  of  a  discretionary  authority  of  a  governmental  nature. 
Thus,  in  the  example  given  in  the  last  section,  where  a  city  leased 
a  wharf  for  a  term  of  years  by  a  lease  which  purported  to  empower 
the  lessee  to  fix  the  rates  for  wharfage,  the  restriction  put  upon 
the  city's  future  control  over  the  wharf  and  the  wharfage  also 
invalidated  the  lease.16 

The  corporation  cannot,  by  contract,  disable  itself  from  using 
its  governmental  discretion,  or  from  performing  an  imperative 
duty  laid  upon  it  by  statute.  Thus,  a  city  is  not  liable  for  breach 
of  the  covenant  of  quiet  enjoyment  contained  in  a  lease  by  it  of 
land  for  cemetery  purposes  because,  in  the  interests  of  public 
health,  it  has  passed  a  subsequent  ordinance  prohibiting  the  use 
of  the  cemetery  for  burial  of  the  dead.  The  police  power  of  the 
corporation  is  superior  to  the  obligation  of  the  lease;  the  ordi- 
nance has  an  effect  similar  to  that  of  a  statute  which  makes 
illegal  the  performance  of  a  contract  of  private  individuals.17 
A  city  is  not  liable  upon  such  a  covenant  if  it  afterward 
takes  part  of  the  leased  land  by  right  of  eminent  domain.18 

is  Richardson  v.  Heydenfeldt,  46  mazoo,  23  Mich.  344 ;  Illinois  S.  & 

Cal.  68 ;  Chase  v.  Sheerer,  136  Cal.  T.   Co.  v.  Arkansas  City,  76  Fed. 

248,  68  Pac.  7G8 ;  Ruggles  v.  Collier,  271,  and  cases  cited ;  Brenham  v. 

43  Mo.  353.  Brenham    W.    Co.,    67    Tex.    543; 

i*  Smith  v.  Duncan,  77  Ind.  92 ;  Houston  v.  Houston  City  R.  Co.,  84 

Hydes  v.  Joyes,  4  Bush,  464,  96  Am.  Tex.  581. 
Dec.  311.  IT  Presbyterian    Church    v.    New 

is  St.  Louis  v.  Clemens,  43  Mo.  York,    5   Cowen,    538,   1    Andrews, 

395.  American  Law,  §  408. 

10  "The   legislative   authority   of        is  Brimmer  v.  Boston,  102  Mass, 

the  city  could  not  be  delegated,  nor  19.    In  Kendall  v.  Frey,  74  Wis.  26, 

could  the  city  abdicate  its  control  42  N.  W.  466,  the  court  refused  to 

over  the  public  property  held  in  compel  specific  performance  by  a 

trust  by  it  for  the  benefit  of  the  city  of  a  condition  in  a  deed  of  land 

public."     Matthews  v.  Alexandria,  to  the  city  which  required  the  city 

68   Mo.   115.     See  on  the  general  to    erect   a    city-hall    thereon,    the 

principle,  Illinois  Canal  Co.  v.  St.  council  having  decided  upon  a  dif- 

Louis,  2  Dillon,  84 ;  Oakland  v.  Car-  ferent  site.     A  city  cannot,  by  a 

pentier,  13  Cal.  540;  Gale  v.  Kala-  contract  with  a  railroad  company 


92 


PUBLIC    CORPORATIONS. 


[§77 


A    city    cannot   bind    itself   not   to    change   the    grade    of   a 
street.19 

But  a  public  corporation  may  surrender  its  discretion  in  mat- 
ters which  affect  or  restrict  it  only  economically.  Its  general 
power  to  contract  necessarily  involves  an  ability  to  bind  itself  in 
that  respect.20  A  city  may,  under  an  authority  in  gen- 
eral terms,  make  a  contract  for  a  supply  of  water  or 
gas  to  itself  or  its  inhabitants  for  a  period  of  time  at  a  fixed 
price;21  and  if,  in  an  ordinance  granting  a  franchise  to  a  water 
or  light  company,  a  rate  is  fixed  to  be  charged  consumers,  the  rate 
cannot  afterward  be  changed  by  the  municipality,  even  under 
an  express  delegation  of  the  legislative  power  to  regulate  rates 
of  public  service  corporations.22  The  contract  binds  the  city  ex- 
cept as  to  its  police  power,  in  the  exercise  of  which  it  may  regu- 
late the  performance  of  it  or  terminate  it  if  necessary  to  do  so  to 
preserve  the  public  health  or  safety.23  Some  authorities  require 
express  and  clear  statutory  authorization  to  admit  of  a  munici- 


for  the  construction  of  a  viaduct, 
bind  itself  not  to  require  the  com- 
pany to  make  repairs  on  the  same. 
Northern  Pac.  R.  Co.  v.  State,  208 
U.  S.  583. 

19  Miller  v.  Kalamazoo,  140  Mich. 
494,    103    N.    W.    845;    Goszler    v. 
Georgetown,  6  Wheat.  597,  and  see 
cases  cited. 

20  "There  is  a  distinction  between 
powers   of  a   legislative  character 
and  powers  of  a  business  nature. 
The  power  to  execute  a  contract 
for  goods,  for  houses,  for  gas,  for 
water  and  the  like,  is  neither  a  judi- 
cial nor  a  legislative  power,  but  is 
a    purely    business    power."      Val- 
paraiso v.  Gardner,  97  Ind.  1 ;  Cin- 
cinnati v.  Cameron,  33  Oh.  St.  336 ; 
Safety  Insulated  Wire,  etc.,  Co.  v. 
Baltimore,   66  Fed.   140,   25  U.   S. 
App.  166. 

21  Indianapolis     v.     Indianapolis 
Gas,   etc.,   Co.,   66  Ind.   396;   Vin- 


cennes  v.  Citizen's  Gas  Light,  etc., 
Co.,  132  Ind.  114,  31  N.  E.  573; 
Walla  Walla  v.  Walla  Walla  Water 
Co.,  172  U.  S.  1 ;  Vicksburg  Water- 
works Co.  v.  Vicksburg,  185  U.  S. 
65;  s.  c.  202  U.  S.  453;  s.  c.  206 
U.  S.  496;  Water  Co.  v.  Knoxville, 
200  U.  S.  22 ;  Blair  v.  Chicago,  201 
U.  S.  400;  Omaha  Water  Co.  v. 
Omaha,  147  Fed.  1 ;  Weller  v.  Gads- 
den,  141  Ala.  642,  37  So.  682 ;  Gads- 
den  v.  Mitchell,  145  Ala.  137 ;  Baily 
v.  Philadelphia,  184  Pa.  St.  594,  39 
Atl.  494;  Danville  v.  Danville 
Water  Co.,  178  111.  299,  53  N.  E. 
118 ;  s.  c.  180  111.  235,  54  N.  E.  224 ; 
s.  c.  180  U.  S.  619;  Freeport  v. 
Freeport  Water  Co.,  186  111.  179, 
57  N.  E.  862 ;  s.  c.  180  U.  S.  588. 

22  State  v.  Cincinnati  Gas  Co.,  18 
Oh.  St.  262;  State  v.  Laclede  Gas- 
light Co.,  102  Mo.  472. 

23  Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1. 


§  78]  DELEGATION   AND   RESTRICTION   OF   POWER.  93 

pality's  binding  itself  to  a  specific  rate  in  an  ordinance  granting 
a  franchise.24 

It  has  been  held  that  a  city,  in  making  such  a  contract,  may,  to 
some  extent,  restrict  its  discretion  to  undertake  a  similar  local 
service,  in  competition  with  the  other  party,  by  establishing  a 
plant  of  its  own  during  the  term  of  the  lease ;  because  the  au- 
thority to  maintain  such  service  is  of  a  voluntary  nature,  for  the 
local  convenience  of  its  citizens.  Thus,  where  the  maintenance  of 
a  gas-lighting  plant  is  purely  voluntary,  the  city  may  abandon 
the  enterprise,  lease  the  plant,  and  contract  with  the  lessee  that 
the  latter  may  supply  the  service  at  a  fixed  rate  for  a  term  of 
years,  and  that  the  city  shall  not  establish  a  plant  of  its  own  dur- 
ing the  term.25  A  similar  restriction  against  establishing  a  plant 
of  its  own  was  held  valid  in  a  contract  with  a  water  company.26 
But  the  provision  may  be  abrogated  in  the  exercise  of  the  police 
power.27 

Whenever  the  exercise  of  governmental  discretion  by  the  cor- 
poration results  in  a  termination  of  the  contract,  the  other  party 
is  entitled  to  be  compensated  for  any  part-performance  of  it  by 
him,  as  in  the  case  of  other  contracts  when  performance  has  been 
made  impossible  by  act  of  law.28 

§78.  By  contract  for  a  term  of  years. — In  the  absence  of 
a  charter  restriction,29  it  is  not  a  legal  objection  to  a  contract  of 

24  Danville  v.  Danville  Water  Co.,  ness  again  as  a  rival,  within  an 

178  111.  299;  s.  c.  180  111.  235;  s.  c.  agreed  territory  or  for  an  agreed 

180  U.  S.  619 ;  Freeport  v.  Freeport  time.     The   city   of   Philadelphia 

Water  Co.,  186  111.  179;  s.  c.  180  selling   its   gas-rnaking   plant   and 

TJ.  S.  588.  good-will  may  do  the  same  thing." 

25"    *    *     *    The  city   in   this  Baily  v.  Philadelphia,  184  Pa.  St. 

matter  is  acting  in  its  business,  not  594,  at  605,  39  Atl.  494. 

its  governmental,  capacity,  and  the  26  Vicksburg  Water  Works  Co.  v. 

owner  of  business  property,  even  Vicksburg,  supra;  Walla  Walla  v. 

though    a    municipal    corporation,  Walla  Walla  Water  Co.,  supra. 

may,  in  dealing  with  it  make  such  27  Walla  Walla  v.  Walla  Walla 

terms  as  in  its  discretion  it  deems  Water  Co.,  supra. 

best   for   its   interest.     When   the  28  Rittenhouse  v.  Mayor,  25  Md. 

owner  of  a  business  sells  it  with  its  336. 

good-will,    etc.,   he   may   agree  as  29  Indianapolis  v.  Waun,  144  Ind. 

part  of  the  consideration  to  the  pur-  175,  42  N.  E.  Rep.  901,  31  L.  R.  A. 

chaser,  not  to  go  into  the  same  busi-  743. 


PUBLIC   CORPORATIONS. 


[§79 


a  public  corporation  merely  that  it  is  to  remain  in  force  for  a 
time  which  will  extend  beyond  the  term  of  the  council,  or  of  the 
officers,  who  made  it.30  Almost  all  important  municipal  con- 
tracts, or  ordinances  in  the  nature  of  contracts,  must  necessarily 
limit  future  councils.31  But  the  term  of  the  contract  must  al- 
ways be,  from  the  standpoint  of  the  city's  interests,  a  reasonable 
one ;  this,  in  view  of  all  the  circumstances — the  size  and  probable 
development  of  the  city,  the  nature  of  the  service,  the  price  to 
be  paid,  the  probability  of  changes  in  the  cost  of  production.  And 
the  reasonableness  of  the  transaction,  being  a  question  of  the  ex- 
tent of  power,  is  for  the  court.32  The  rule  of  the  last  section, 
which  permits  municipal  corporations  to  contract  for  water  and 
light  for  themselves  and  their  inhabitants,  is  limited  by  this  doc- 
trine. For  such  contracts,  terms  of  from  twenty-five  to  thirty 
years  are  usually  held  reasonable.33 

§  79.  By  exclusive  privileges. — It  is  well  settled  that  when 
a  municipal  corporation  under  some  granted  authority,  grants 
a  special  franchise  or  privilege,  such  as  the  right  to  put  mains, 


30  See  cases  cited  in  last  section. 
Garrison  v.  Chicago,  7  Biss.  480; 
New  Orleans  G.  L.  Co.  v.  New  Or- 
leans, 42  La.  188;  Smith  v.  Ded- 
ham,  144  Mass.  177;  Merrill,  etc. 
Ry.  Co.  v.  Merrill,  80  Wis.  358; 
Columbus  W.  W.  Co.  v.  Columbus, 
48  Kan.  99;  Davenport  v.  Klein- 
schmidt,  6  Mont.  502 ;  Atlantic  City 
W.  W.  v.  Atlantic  City,  48  N.  J.  L. 
378;  Santa  Anna  W.  Co.  v.  San 
Buenaventura,  56  Fed.  Rep.  339. 
See  note  to  Sheldon  v.  Fox,  48  Kan. 
356,  16  L.  R.  A.  257. 

si  In  Illinois  T.  &  S.  Bank  v. 
Arkansas  City,  40  C.  C.  A.  257,  76 
Fed.  Rep.  271,  34  L.  R.  A.  518,  the 
court  said :  "But  it  is  insisted  that 
this  contract  is  beyond  the  powers 
of  the  city  and  void,  because  it 
grants  the  right  to  use  the  streets 
of  the  city  to  the  water  company, 
and  promises  to  pay  rental  for  the 
hydrants  for  twenty-one  years. 
The  proposition  on  which  this  con- 


tention rests  is  that  the  members  of 
the  city  council  are  trustees  for  the 
public;  that  they  exercise  legisla- 
tive powers,  and  that  they  can 
make  no  grant  and  conclude  no  con- 
tract which  will  bind  the  city  be- 
yond the  terms  of  their  offices,  be- 
cause such  action  would  circum- 
scribe the  legislative  powers  of 
their  successors,  and  deprive  them 
of  their  right  to  their  unrestricted 
exercise  as  the  exigencies  of  the 
times  might  demand.  *  *  *  This 
proposition  ignores  the  settled  dis- 
tinction between  the  governmental 
or  public,  and  the  proprietary  or 
business,  powers  of  a  municipality, 
and  erroneously  seeks  to  apply  to 
the  exercise  of  the  latter  a  rule 
which  is  only  applicable  to  the  ex- 
ercise of  the  former." 

szFlynn  v.  Little  Falls,  etc.  Co., 
74  Minn.  180 ;  1  Andrews,  American 
Law,  §  408. 

ss  Cases  cited  in  last  section. 


§  80]  DELEGATION   AND   RESTRICTION   OF   POWER.  95 

pipes  or  hydrants  in  streets,  it  cannot,  without  express  and  clear- 
authorization,  make  the  right  exclusive.34  The  general  rule  is 
that  the  legislature  alone  has  the  power  to  make  grants  of  this 
character  exclusive,  and  that  this  authority  does  not  vest  in 
the  municipality,  unless  it  is  clearly  granted  to  it  by  its  charter.35 
Exclusive  rights  of  this  nature  are  not  favored.  If  there  is  any 
ambiguity  or  reasonable  doubt  arising  from  the  terms  used  by 
the  legislature  or  granting  body  as  to  whether  an  exclusive  fran- 
chise has  been  conferred  or  authorized  to  be  conferred,  the  doubt 
is  to  be  resolved  against  the  party  claiming  such  grant.36 

Power  to  light  its  streets  is  authority  to  give  the  use,  although 
not  the  exclusive  use,  of  the  streets  to  the  party  with  whom  the 
contract  for  lighting  is  made.37  Power  to  provide  a  water  sup- 
ply,38 or  "to  cause  said  city  or  any  part  thereof  to  be  lighted 
with  oil  or  gas,  and  to  levy  a  tax  for  that  purpose, ' '  will  not  au- 
thorize contracts  giving  the  exclusive  right  to  furnish  water  or 
light  lor  a  fixed  period.39  So  a  city  cannot,  without  express  au- 
thority, grant  to  a  street  railway  company  the  sole  and  exclusive 
right  to  construct  and  operate  street  railways  in  its  streets.40 

§  80.  Power  to  sell  and  convey  property.— The  power  of  a 
public  corporation  to  sell  and  convey  property  not  devoted  to  any 

a*  Syracuse  W.  Co.  v.  Syracuse,  246,  30  XL  S.  (App.)  110.    The  state 

116  N.   Y.   167,   5   L.   R.   A.   546;  may  grant  an  exclusive  franchise. 

Altgeld  v.  San  Antonio,  81  Tex.  436,  N.  O.  Gas  Co..  v.  La.  Light  Co.,  115 

13  L.  R.  A.  383,  note ;  State  v.  Gin-  U.  S.  650. 

cinnati  Gas  Co.,  18  Ohio  St.  262;  ss  Illinois  Trust  &  Sav.  Bank  v. 

Gale  v.  Kalamazoo,  23  Mich.  344,  Arkansas  City,  40  C.  C.  A.  257,  34 

9  Am.  Rep.  80 ;  Logan  v.  Pyre,  43  L.  R.  A.  518,  76  Fed.  271,  and  cases 

Iowa,  524,  22  Am.  Rep.  261;  Des  cited. 

Moines  Gas  Co.  v.  Des  Moines,  44  so  Long   v.    City   of   Duluth,    49 

Iowa,  505,  24  Am.  Rep.  756 ;  Sagi-  Minn.  280 ;  Nash  v.  Lowry,  37  Minn, 

naw  G.  L.  Co.  v.  Saginaw,  28  Fed.  261 ;  Wright  v.  Nagle,  101  U.  S.  791. 

Rep.   529;   Norwich   G.   L.   Co.   v.  37  Norwich  G.  L.  Co.  v.  Norwich 

Norwich   City   Gas   Co.,   25   Conn.  City  G.  Co.,  25  Conn.  20. 

20 ;    Long   v.    City   of   Duluth,   49  ss  Altgeld  v.  San  Antonio,  81  Tex. 

Minn.  280,  and  cases  there  cited  and  436. 

reviewed.    Greenville  W.  W.  Co.  v.  39  Davenport  v.  Kleinschmidt,  6 

Greenville,  70  Miss.  669  (1890).  As  Mont.  502;  In  re  Union  Ferry  Co., 

to  power  of  creating  monopolies,  98  N.  Y.  139. 

see  Saginaw  Gas  L.  Co.  v.  Saginaw,  40  Jackson  Co.  H.  R.  Co.  v.  In- 

28  Fed.  Rep.  529 ;  City  of  Laredo  v.  terstate  R.  Co.,  24  Fed.  Rep.  306 ; 

Int.    Bridge    &    T.    Co.,    66    Fed.  Nash  v.  Lowry,  37  Minn.  261. 


9G  PUBLIC   CORPORATIONS.  [§  80 

special  public  purpose,  or  which  is  held  only  for  value  or  income, 
differs  in  no  essential  respect  from  that  of  a  private  individual.41 
Even  property  originally  devoted  to  the  performance  of  some  pub- 
lic duty  may  doubtless,  if  the  corporation  has  the  legal  and  com- 
plete title,  be  alienated  when  no  longer  required,  or  whenever,  in 
the  discretion  of  the  corporation,  other  property  has  been  sub- 
stituted.42 But  a  public  corporation  has  no  power,  in  the  absence 
of  express  authority,  to  convey  property  when  the  conveyance  will 
disable  it  from  performing  some  public  duty,  especially  one  im- 
peratively laid  upon  it  by  statute,  or  will  involve  an  abandon- 
ment thereof.43  Obviously  a  city  could  not  dispose  of  a  sewer  the 
construction  of  which  had  been  specifically  required  of  it  by 
statute.  And  a  public  corporation  can  never,  without  express 
authority,  alienate  property  which  it  holds  as  a  mere  involuntary 
instrument  of  the  state,  or  as  a  simple  custodian  for  the  public. 
Generalizations  in  this  respect,  however,  must  necessarily  be  de- 
fective and  misleading ;  the  power  to  convey  particular  property, 
of  which  the  corporation  has  a  complete  legal  title  and  which  is 
not  subject  to  a  legal  public  easement,  must  always  rest  upon  the 
nature  of  the  property,  the  mode  of  acquisition,  the  conditions 
under  which  alienation  is  sought  to  be  made,  and  the  particular 
statutes  under  which  the  property  is  held. 

Property  dedicated  to  public  use,  or  taken  by  right  of  eminent 
domain  for  public  use,  cannot  be  alienated  at  will  while  charged 
with  such  use.  A  city,  for  example,  cannot  grant  title  to  an  or- 
dinary street  or  public  square,  park  or  common ;  and  even  though 
it  own  the  fee  it  cannot  do  so  unless  the  public  easement  be  pre- 
viously or  simultaneously  terminated  by  proper  legislative  ac- 
tion.44 

4i  See  e.  g.  (school  lands)  Bowlin  dria,  68  Mo.  115,  30  Am.  Rep.  776; 

v.   Furman,   28   Mo.   427;    (stock)  Lord  v.  Oconto,  47  Wis.  386. 
Newark  v.  Elliott,  5  Ohio  St.  113 ;        44  Hoadley  v.  San  Francisco,  124 

Fort  Wayne  v.  Lake  Shore,  etc.  R.  U.  S.  639.     Even  though  the  land 

Co.,  132  Ind.  558,  18  L.  R.  A.  367,  was    voluntarily   purchased   by   it 

32  N.  E.  215;  Hand  v.  Newton,  92  and  afterward  dedicated  by  it  to 

N.  Y.  88.    As  to  power  to  mortgage,  the  use  of  the  public  for  a  common, 

see  Adams  v.  Memphis,  etc.  R.,  2  State  v.  Woodward,  23  Vt.  92.  Com- 

Caldwell   (Tenn.),  645.  pare,  where  easement  has  been  ter- 

42Baily  v.  Philadelphia,  184  Pa.  minated  by  statute  or  ordinance. 

594 ;  Konrad  v.  Rogers,  70  Wis.  492.  Philadelphia  v.  P.  &  R.  R.  Co.,  58 

43  2   Dillon,   Mun.   Corp'ns    (4th  Pa.  St.  253 ;  Kings  Co.  Fire  Ins.  Co. 

ed.),   §575.    Matthews  v.  Alexan-  v.  Stevens,  101  N.  Y.  411. 


§  81]  DELEGATION  AND  RESTRICTION  OF  POWER.  97 

§  81.  Power  to  let  for  income. — A  municipal  corporation 
has  a  general  discretion  and  authority  to  make  an  incidental  in- 
come from  its  surplus  or  idle  property.  An  old  building  owned 
by  the  corporation,  but  no  longer  needed  for  use,  may  be  repaired 
and  leased.43  A  public  building  or  a  portion  thereof  may  be 
rented  during  periods  when  otherwise  it  would  be  idle;  for  ex- 
ample, a  city  or  town  hall  for  entertainments ;  46  basement  rooms 
in  a  city  hall  for  stores  and  offices.47  So  a  town  may  sell  the  sur- 
plus output  of  a  gravel-pit  or  a  stone  quarry. 

§  82.  Alienation  by  law — Creditors. — It  is  a  general  princi- 
ple, adopted  to  prevent  the  disabling  of  the  public  agencies,  that 
property  charged  with  a  public  use  cannot,  without  statutory  per- 
mission, be  alienated  by  levy  and  sale  on  execution.  This  rule  ex- 
empts from  judgment  liens  and  from  seizure  on  execution,  all 
such  property  of  public  corporations  as  is  charged  with  a  corpo- 
rate duty  or  sendee,  either  to  the  general  public  or  to  the  inhabi- 
tants ;  including  ' '  public  buildings,  hospitals,  and  cemeteries,  fire 
engines  and  apparatus,  waterworks,  and  the  like. ' ' 48  The  same 
exemption  applies  as  against  mechanics,  maritime,  and  similar 
liens;  statutes  giving  such  remedies  are  construed  not  to  be  in- 
tended to  apply  to  public  or  municipal  property  devoted  to  a 
governmental  use.49 

In  some  states,  either  because  statutes  specify  a  remedy  by 
mandamus,  or  because  of  the  nature  of  these  corporations  as  in- 
struments of  government,  it  is  held  that  the  remedy  by  execu- 
tion does  not  lie  against  property  of  any  nature  owned  by  public 
corporations;  and  that  the  only  remedy  adaptable  to  the  nature 
of  the  case  it,  a  writ  of  mandamus  to  the  proper  authority  to  com- 


45  Bates  v.  Bassett,  60  Vt.  530.  works)  New  Orleans  v.  Morris,  105 

46  French  v.  Quincy,  3  Allen,  9 ;  TJ.  S.  600.     Such  property  does  not 
Bell  v.  Platteville,  71  Wis.  139,  36  lose  its  immunity  by  a  temporary 
N.  W.  831.  abandonment  of  it  for  such  a  use. 

47  Oliver  v.  Worcester,  102  Mass.  Murphree  v.  Mobile,  104  Ala.  532. 
489.  49  Brickley  v.  Boston,  20  Fed.  207 ; 

48  See    2    Dillon,    Mun.    Corp'ns  Ripley  v.   Gage  Co.,  3  Neb.  397 ; 
(4th  ed.),  §576;  (hospital)  Daven-  Parke  Co.  v.  O'Conner,  86  Ind.  531, 
port  v.  Insurance  Co.,  17  Iowa,  276;  44  Am.  Rep.  338 ;  Leonard  v.  Brook- 
(schoolhouse)  Fleishel  v.  High  tow-  lyn,  71  N.  Y.  498,  27  Am.  Rep.  80; 
er,  62  Ga.  324 ;  (public  square)  Ran-  Board  of  Education  v.  Neidenber- 
som  v.  Boal,  29  Iowa,  68 ;  Lowe  v.  ger,  78  111.  58. 

Howard  Co.,  94  Ind.  553;   (water- 


98 


PUBLIC   CORPORATIONS. 


[§82 


pel  payment  of  the  judgment,  or  taxation  if  necessary.50  In  other 
states  the  remedy  by  levy  on  execution  is  deemed  proper  as 
against  such  property  of  a  municipal  corporation  as  is  not  de- 
Voted  to  a  public  use.51  An  early  rule  in  the  New  England  states, 
resulting  largely  from  the  absence  of  any  general  'town  fund,  rec- 
ognized a  liability  upon  the  inhabitants  of  towns  for  the  common 
debts ;  it  is  said  to  be  still  the  rule  in  those  states  that,  on  execu- 
tion against  a  town,  the  individual  property  of  the  inhabitants 
mav  be  seized  and  sold.52 


50  Board  of  Education  v.  Neiden- 
berger,  78  111.  58 ;  State  v.  Milwau- 
kee, 20  Wis.  87;  Comm.  v.  Alle- 
gheny Co.,  37  Pa.  St.  277 ;  Crane  v. 
Fond  du  Lac,  16  Wis.  196.  A  court 
of  equity  has  no  power  to  decree 
a  tax  against  the  inhabitants  of  a 
city,  and  collect  it  through  an  offi- 
cer of  the  court,  even  where  the 
remedy  by  mandamus  is  ineffective. 
Rees  v.  Watertown,  16  Wall.  107; 
Thompson  v.  Allen  Co.,  115  U.  S. 
550. 

si  Brown  v.  Gates,  15  W.  Va.  131 ; 


Birmingham  v.  Rumsey,  63  Ala. 
352 ;  Darlington  v.  Mayor,  31  N.  Y. 
164,  88  Am.  Dec.  248;  Holliday  v. 
Frisbie,  15  Cal.  630.  See  Meri- 
wether  v.  Garrett,  102  U.  S.  472. 

52  School  Dist.  v.  Wood,  13  Mass. 
192 ;  Riddle  v.  Proprietors,  7  Mass. 
187;  Chase  v.  Merrimack  Bank,  19 
Pick.  564 ;  Adams  v.  Wiscasset 
Bank,  1  Greenlf.  361.  Applied  to 
cities,  Beardsley  v.  Smith,  16  Conn. 
368.  Doctrine  reviewed  and  repu- 
diated, Horner  v.  Coffey,  25  Miss. 
434. 


CHAPTER  X. 

THE  POWER  OF  EMINENT  DOMAIN. 


§83.  Definition. 

84.  May  be  delegated. 

85.  What  may  be  taken. 

86.  Must  be  for  public  use. 

87.  Property  already  appropriat- 

ed to  public  use. 

88.  Meaning  of  property. 

89.  Necessity  for  taking. 

90.  What  constitutes  a  "taking." 


§  91.  The  proceedings. 

92.  The  tribunal. 

93.  Notice  and  hearing. 

94.  The  compensation. 

95.  Consequential  injuries. 

96.  Benefits. 

97.  Manner  of  payment. 

98.  Right  of  appeal. 


§83.  Definition. — The  power  of  eminent  domain  is  "that 
superior  right  of  property  pertaining  to  the  sovereignty  by  which 
the  private  property  acquired  by  its  citizens  under  its  protection 
may  be  taken  or  its  use  controlled  for  the  public  benefit,  without 
regard  to  the  wishes  of  its  owners.  More  accurately,  it  is  the 
rightful  authority  which  exists  in  every  sovereignty  to  control 
and  regulate  those  rights  of  a  public  nature  which  pertain  to  its 
citizens  in  common,  and  to  appropriate  and  control  individual 
property  for  the  public  benefit  as  the  public  safety,  necessity, 
convenience  or  welfare  may  demand. ' ' 1 

It  grows  out  of  the  necessities  of  government  and  is  the  off- 
spring of  political  necessity.2  It  is  distinct  from  the  police  power 
and  the  power  of  taxation.3 

The  power  of  government  based  upon  the  eminent  domain 
should  be  distinguished  especially  from  that  right  which  is  vested 
in  the  public,  and  in  each  individual  thereof,  and  in  the  proper 
governmental  agencies  as  representing  the  public,  to  injure  or 
destroy  private  property  in  cases  of  emergency  for  the  purpose 
of  averting  or  resisting  public  calamity;  for  example,  to  destroy 
buildings  to  prevent  the  spreading  of  fire.  This  latter  right 
rests  upon  necessity,  and  is  like  that  of  self-defense.  No  com- 

iCooley,  Const.  Lim.  (7th  ed.)  a  Nichols  v.  Bridgeport,  23  Conn. 
753 ;  Lewis,  Eminent  Domain,  ch.  1.  189. 

2  Kohl  v.  United  States,  93  U.  S. 
367. 

99 


100  PUBLIC   CORPORATIONS.  [§84 

pensation  can  be  recovered  by  property  owners  for  such  injuries 
unless  provided  for  by  statute.4 

§  84.  May  be  delegated. — The  right  to  exercise  the  power 
of  eminent  domain  may  be  delegated  to  public  or  private  corpo- 
rations.5 Such  a  grant  must,  however,  be  strictly  construed,6 

§  85.  What  may  be  taken. — Usually  under  a  general  grant 
of  power  to  take  lands  for  its  purposes,  a  municipal  corporation 
can,  by  its  condemnation,  take  only  an  easement.  This  results 
from  the  strict  construction  of  grants  of  public  powers.  To  admit 
of  a  taking  in  fee,  the  language  used  by  the  legislature  must  clear- 
ly appear  to  authorize  it,  or  must  impliedly  authorize  it  from 
the  nature  of  the  purpose  for  which  it  is  specifically  granted.7 
Every  species  of  private  property  may  be  authorized  to  be  taken 
under  this  power.  Thus,  the  state,  or  a  body  to  which  the  power 
has  been  delegated,  may,  when  necessary  for  a  public  purpose, 
take  lands,8  houses,9  piers,10  bridges,11  streams  of  water12  and 
corporate  property  and  franchises.13  Riparian  rights  are  prop- 
erty which  cannot  be  taken  without  compensation.14  Thus,  the 
riparian  rights  of  the  lower  owners  upon  the  banks  of  a  stream 
cannot,  except  in  aid  of  navigation,  be  taken  by  the  state  for  a 
public  purpose  without  compensation.15  The  legislature  may  de- 

4  Russell  v.  Mayor,  2  Denio.  461 ;  »  Wells  v.  Somerset,  etc.  R.  Co., 

Field  v.  Des  Moines,  39  la.  575;  47  Me.  345. 

Bowditch  v.  Boston,  101  TJ.  S.  16 ;  10  In  re  Union  Ferry,  98  N.  Y. 

Parsons  v.  Pettingill,  11  Allen,  507 ;  139.     A  lease  of  the  wharves  of  a 

American  Print  Works  v.  Lawrence,  port  may  be  taken.     Duffy  v.  New 

21  N.  J.  L.  248.  Orleans,  49  La.  Ann.  114. 

s  Kansas  City  v.  Marsh  Oil  Co.  "  Northampton  Bridge  Case,  116 

140  Mo.  458,  41   S.  W.  Rep.  943;  Mass.  442. 

Allen  v.  Jones,  47  Ind.  438 ;  Cooley,  12  Reusch  v.  Chicago,  etc.  Ry.  Co., 

Const.  Lim.   (7th  ed.)  762.  57  Iowa,  685. 

«  Alexandria,  etc.  Ry.  Co.  v.  Alex-  is  West  River  Bridge  Co.  v.  Dix, 

andria,  75  Va.  780;  Leeds  v.  Rich-  6  How.  (U.  S.)  507. 

mond,  102  Ind.  372.  "Rumsey  v.  N.  Y.  &  N.  E.  Ry. 

7  Washington    Cemetery    Co.    v.  Co.,  130  N.  Y.  88,  15  L.  R.  A.  618, 

Prospect  Park,  etc.  R.  Co.,  68  N.  Y.  annotated. 

591 ;  Newton  v.  Perry,  163  Mass.  15  Kaukauna  Water  Power  Co.  v. 

319 ;  Dingley  v.  Boston,  100  Mass.  Green  Bay  Canal  Co.,  142  U.  S.  254 ; 

544 ;  Corwin  v.  Cowan,  12  Oh.  St.  Patten    Paper    Co.    v.    Kaukauna 

629 ;  Pittsburg,  etc.  R.  Co.  v.  Bruce,  Water  Power  Co.,  90  Wis.  370,  28 

102  Pa.  St  23.  L.  R.  A.  443. 

s  Bliss  v.  Hosmer,  15  Ohio,  44. 


§86] 


POWER  OF   EMINENT  DOMAIN. 


101 


termine  the  quantity  of  estate  which  shall  be  taken,16  or  it  may 
delegate  this  power  to  a  municipality.17  It  may  authorize  the 
taking  of  the  fee 18  or  of  a  mere  easement.19  A  city  cannot,  how- 
ever, condemn  lands  situated  beyond  the  corporate  limits  without 
special  and  clear  authority  to  do  so.20 

§  86.  Must  be  for  public  use. — It  is  only  for  public  use  and 
upon  compensation  made  that  private  property  may  be  taken 
under  the  power  of  eminent  domain.  What  is  a  public  use  is  al- 
ways a  question  for  the  judiciary.21  Public  roads  and  streets,22 
parks,23  and  squares,24  markets,25  cemeteries,26  school  build- 
ings,27 water  and  gas  plants,28  sewers  and  drains,29  almshouses 
and  other  public  buildings,30  are  illustrations  of  public  uses  for 
which  private  property  may  be  taken  under  the  power  of  eminent 
domain.  The  use  of  water  for  the  purpose  of  irrigation  is  a 
public  use.31  Land  cannot  be  taken  for  a  purely  private  road. 
But  the  rule  is  probably  otherwise  where  the  road  is  to  some 
extent  public,  as,  for  instance,  where  a  road  is  opened  at  the  in- 
stance of  a  private  person  who  agrees  to  keep  it  in  repair,  al- 


ia Brooklyn  Park  Com'rs  v.  Arm- 
strong, 45  N.  Y.  234 ;  Wyoming  Coal 
Co.  v.  Price,  81  Pa.  St.  156. 

IT  Powers'  Appeal,  29  Mich.  504. 

is  Haldeman  v.  Pennsylvania  Ry. 
Co.,  50  Pa.  St.  425. 

is  Kellogg  v.  Malin,  50  Mo.  496; 
Clark  v.  Worcester,  125  Mass.  226. 

20  Thompson  v.  Moran,  44  Mich. 
602. 

21  On  the  general  subject  of  pub- 
lic uses  for  which  property  may  be 
taken  under  the  power  of  eminent 
domain,  see  Wisconsin  Water  Co.  v. 
Winans,  85  Wis.  26,  20  L.  R.  A.  662 ; 
Pittsburgh,  etc.  Co.  v.  Benwood  Iron 
Works,  31  W.  Va.  710,  2  L.  R.  A. 
680;  Barre  Ry.  Co.  v.  Montpelier, 
etc.  Ry.  Co.,  61  Vt.  1,  4  L.  R.  A.  785. 

22  Wild    v.    Deig,    43    Ind.    455; 
Bankhead  v.  Brown,  25  Iowa,  540; 
Elliott,  Road  and  Streets,  §  146. 

23  In  re  Mayor  of  New  York,  99 
N.  Y.  569;  South  Park  Com'rs  v. 
Williams,  51  111.  57. 


24  Owners   v.   Mayor,   15   Wend. 
(N.  Y.) ,  374. 

25  in  re  Application  of  Cooper,  38 
Hun  (N.  Y.),  515. 

aeBalch  v.  County  Com'rs,  103 
Mass.  106. 

2t  Williams  v.  School  District,  37 
Vt.  271. 

28  Lake  Pleasanton  Water  Co.  v. 
Contra  Costa  Water  Co.,  67  Cal. 
659;  Bailey  v.  Woburn,  126  Mass. 
416;   Tyler  v.   Hudson,  147  Mass. 
609;  State  v.  Eau  Claire,  40  Wis. 
533 ;  In  re  Deering,  93  N.  Y.  651. 

29  Norfleet  v.  Cromwell,  70  N.  C. 
634,  16  Am.  Rep.  787;  Bancroft  v. 
Cambridge,  126  Mass.  438. 

3°  Lewis,  Eminent  Domain,  §  174. 

si  Bankhead  v.  Brown,  25  Iowa, 
545;  Welton  v.  Dickson,  38  Neb. 
767,  32  L.  R.  A.  496;  Latah  Co.  v. 
Peterson,  2  Idaho,  1118,  16  L.  R. 
A.  81 ;  Varner  v.  Martin,  21  W.  Va. 
538. 


102  PUBLIC    CORPORATIONS.  [  §  87 

though  the  public  is  permitted  to  use  it.32  Land  may  be  taken  for 
a  useful  purpose  which  serves  to  satisfy  a  public  want,  notwith- 
standing the  fact  that  the  element  of  ornament  or  beauty  may 
be  a  controlling  consideration.33 

§87.  Property  already  appropriated  to  public  use. — Prop- 
erty which  is  already  appropriated  to  a  public  use  cannot  be  taken 
for  another  public  use  unless  the  statute  clearly  confers  authority 
to  make  a  second  seizure.34  Thus,  under  a  general  power,  a  city 
cannot  excavate  a  canal  across  a  railway  yard  where  there  are 
numerous  tracks.  "In  determining  whether  a  power  generally 
given  is  meant  to  have  operation  upon  lands  already  devoted  by 
legislative  authority  to  a  public  purpose,"  said  Folger,  J.,35  "it 
is  proper  to  consider  the  nature  of  the  prior  public  work,  the 
public  use  to  which  it  is  applied,  the  extent  to  which  that  use 
would  be  impaired  or  diminished  by  the  taking  of  such  part  of 
the  land  as  may  be  demanded  by  the  subsequent  public  use.  If 
both  uses  may  not  stand  together,  with  some  tolerable  interfer- 
ence which  may  be  compensated  for  by  damages  paid ;  if  the  latter 
use  when  exercised  must  supersede  the  former,  it  is  not  to  be  im- 
plied from  a  general  power  given,  without  having  in  view  a  then 
existing  and  particular  need  therefor,  that  the  legislature  meant 
to  subject  lands  devoted  to  a  public  use  already  in  exercise  to 
one  which  might  thereafter  arise.  A  legislative  intent  that  there 
should  be  such  an  effect  will  not  be  inferred  from  a  gift  of  power 
made  in  general  terms." 

Under  general  power  one  railway  company  cannot  lay  a  track 
longitudinally  along  an  existing  track  of  another  road.36  But 
it  may  make  necessary  crossings  over  another  road.37  A  public 

32  Paxton  &  Hershy  Co.  v.  Far-  ture  will  not  be  deemed  to  have  au- 

mers',  etc.  Co.,  45  Neb.  S£4,  29  L.  thorized  the  taking  of  such  prop- 

R.  A.  853 ;  Lindsay  Irr.  Co.  v.  Mehr-  erty  unless  the  intention  is  clearly 

tens,  97  Cal.  676.   As  to  flowage  of  expressed  in  the  statute.    People  v. 

land,  see  Turner  v.  Nye,  154  Mass.  Thompson,  98  N.  Y.  6. 
578,  14  L.  R.  A.  487,  and  note.  se  in  re  Buffalo,  68  N.  Y.  167. 

as  Higginson  v.  Nahant,  11  Allen,        se  Boston  &  M.  R.  R.  Co.  v.  Low- 

532;    Gardner   v.   Newburg  Tp.,   2  ell,  etc.  R.  Co.,  124  Mass.  368. 
Johns.  Ch.  162 ;  Eldridge  v.  Smith,        ST  St.  Paul,  etc.  Co.  v.  Minneapo- 

34  Vt.  482.  lis,  35  Minn.  141;  Minneapolis  W.' 

34  Cincinnati,  etc.  R.  Co.  v.  Belle  R.  Co.  v.  M.  &  St.  L.  R.  Co.,  61  Minn. 

Centre,  48  Ohio  St.  273,  27  N.  E.  502.     But  see  Sharon  R.  Co.'s  Ap- 

Rep.  464;   Old  Colony  Ry.  Co.   v.  peal,   122   Pa.    St.   533,   and  cases 

Farmington  Water  Co.,  153  Mass,  cited. 
561,  13  L.  R.  A.  333.     The  legisla- 


§  88]  POWER   OF   EMINENT   DOMAIN.  103 

cemetery  cannot  be  taken  for  highway  purposes  without  express 
authority.38  But  a  part  of  a  school  lot  may  be  taken  when  what 
remains  is  not  rendered  wholly  useless.39  The  works  and  fran- 
chises of  a  water  company  may  be  condemned  by  a  city  on  the 
ground  that  they  are  required  for  a  use  of  a  higher  and  wider 
scope.  "All  property  within  the  state  is  subject  to  the  right  of 
the  legislature  to  appropriate  for  a  reasonable  and  necessary  use 
upon  a  just  compensation  being  provided  to  be  made  therefor, 
and  there  can  be  no  distinction  in  favor  of  corporations  whose 
franchises  and  operations  impart  to  them  a  quasi-public  charac- 
ter."40 

§88.  Meaning  of  "property." — The  word  "property,"  as 
now  understood,  includes  all  rights  which  pertain  to  the  owner- 
ship of  things.41  In  a  leading  case  42  it  appeared  that  after  pay- 
ing the  owner  of  land  for  the  damages  resulting  from  laying  out 
a  railroad  across  his  land,  the  company  in  building  its  road  made 
a  deep  cut  through  a  ridge  north  of  the  land  which  protected  it 
from  high  water  in  a  neighboring  river.  In  times  of  high  water, 
stone  and  gravel  were  washed  through  the  cut  upon  the  plaintiff's 
land,  and  it  was  held  that  he  could  recover  for  this  damage,  not- 
withstanding the  fact  that  the  road  had  been  constructed  with 
due  care.  In  this  case,  which  has  been  pronounced  "the  most 
satisfactory  and  best  considered  case  which  can  be  found  in  the 
books  on  this  subject,"  43  will  be  found  a  full  discussion  of  what 
is  meant  by  property  and  what  is  a  taking  of  property  within  the 
meaning  of  the  constitution. 

§  89.  Necessity  for  taking. — How  far  a  court  may  review 
the  exercise  of  the  discretion  reposed  by  the  constitutions  in  the 
legislature  and  its  delegates  to  decide  upon  the  appropriation  of 
a  particular  piece  of  property  to  public  use,  is  a  question  which 
has  occasioned  some  conflict  of  authority.  All  agree  that  the 
judiciary  should  judge  whether  the  use  for  which  the  property  is 
sought  is  a  public  one ;  because  the  legislative  power  to  take  prop- 

ss  Evergreen   Cemetery  Ass'n  v.  (Pa.)  94;  Denver  v.  Bayer,  7  Col. 

New  Haven,  43  Conn.  234.  113.     See  an  article  by  Mr.  Sedg- 

39  Easthampton  v.  County  Com'rs,  wick,    in    North    Am.    Rev.,    Sept. 
164  Mass.  424.  1882,  vol.  135,  p.  253. 

40  In  re  Brooklyn,  143  N.  Y.  596,  «  Eaton  v.  Boston,  etc.  R.  Co.,  51 
26  L.  R.  A.  270.  N.  H.  504. 

41  Arnold  v.  Hudson  R.  Co.,  55  N.  43  Grand  Rapids  Booming  Co.  v. 
Y.  661 ;  Morrison  v.  Semple,  6  Binn.  Jarvis,  30  Mich.  308,  Christiancy,  J. 


104 


PUBLIC   CORPORATIONS. 


[§89 


erty  is  limited  to  certain  purposes,  and  hence  the  question  of  pur- 
pose is  a  question  of  power.  Nearly  all  are  in  harmony  also  in 
the  view  that  when  the  power  is  wielded  directly  by  the  legis- 
lature the  decision  of  that  body  as  to  the  necessity  or  advisability 
of  taking  the  property,  being  a  decision  upon  a  political  question, 
is  final.44  By  the  great  weight  of  authority,  the  decision  is  equally 
final  when  made  by  a  governmental  agency  endowed  with  the 
power  by  statute;  because  the  decision  is  the  same  political  one, 
delegated  to  a  subordinate  judgment.45  Leading  courts  have  ad- 
hered to  this  view  even  where  the  authority  was  conferred  in  terms 
which,  in  another  matter,  would  ordinarily  make  necessity  an 
express  condition  to  jurisdiction,  and  therefore  the  subject  of 
judicial  review;  for  example,  "may  take  any  lands  or  real  estate 
necessary,"  etc.46 

The  authorities  are  in  conflict  as  to  whether  the  property  owner 


44  Paxton,  etc.  Co.  v.  Farmers'  Co., 
45  Neb.  884,  29  L.  R.  A.  853 ;  Water- 
loo Woolen  Mfg.  Co.  v.  Shanahan, 
128  N.  Y.  345;  Dingley  v.  Boston, 
100  Mass.  558 ;  Ryerson  v.  Brown, 
35  Mich.  333,  24  Am.  Rep.  564;  In 
re  St.  Paul  Ry.  Co.,  34  Minn.  227. 
Contra,  Stearns  v.  Barre,  73  Vt.  281. 
The  constitution   of   Michigan   re- 
quires that  the  necessity  of  taking 
particular  land — indeed,  the  neces- 
sity of  the  improvement  itself — be 
determined  by  a  jury,  together  with 
the  amount  of  compensation.   Pow- 
er's App.,  29  Mich.  509;   and  see 
Wisconsin  Const'n. 

45  Chicago,  Rock  Island  &  P.  R. 
Co.  v.  Lake,  71  111.  333;   Chicago 
N.  W.  R.  Co.  v.  Morrison,  195  111. 
272 ;  State  v.  Stewart,  74  Wis.  630 ; 
New  York,  etc.  R.  Co.  v.  Long,  69 
Conn.  424.    Contra,  Butte,  A.  &  P. 
R.   Co.   v.   Montana  TJ.  R.   Co.,  16 
Mont.  504 ;  Stearns  v.  Barre,  supra; 
Olmstead   v.   Morris   Aqueduct,  47 
N.  J.  L.  328. 

A  court  cannot  pass  upon  the 
determination  of  a  railroad  as 
to  the  route  of  its  road,  or  that 
of  a  city  as  to  the  location  of 


a  street.  Kansas,  etc.  Coal  R.  Co.  v. 
N.  W.  Coal  etc.  Co.,  161  Mo.  288; 
Struthers  v.  Dunkirk,  etc.  Co.,  87 
Pa.  282 ;  Knoblauch  v.  Minneapolis, 
56  Minn.  325;  Bass  v.  Ft.  Wayne, 
121  Ind.  389.  Contra,  as  to  route 
(sewers)  Santa  Ana  v.  Gild- 
macher,  133  Cal.  399.  The  fact 
that  other  land  in  the  vicinity  could 
be  taken  more  conveniently,  and 
with  less  injury  to  property  own- 
ers, is  not  available  as  a  ground  for 
contesting  the  taking.  N.  P.  R.  Co. 
v.  Colo.  Postal  Telegraph  Cable  Co., 
30  Colo.  133;  Savannah  F.  &  W. 
R.  Co.  v.  Postal  Tel.  Cable  Co.,  112 
Ga.  941. 

46  Lynch  v.  Forbes,  161  Mass. 
302;  Hayford  v.  Bangor,  102  Me. 
340;  Burnett  v.  Boston,  173  Mass. 
173;  McKennon  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  69  Ark.  104.  See  Hono- 
lulu Rapid  Transit  Co.  v.  Hawaii, 
211  U.  S.  282 ;  People  v.  Brooklyn 
Heights  R.  Co.,  172  N.  Y.  90.  Com- 
pare Renssalaer  etc.  R.  Co.  v. 
Davis,  43  N.  Y.  137 ;  and  see  Tracy 
v.  Elizabethtown,  etc.  R.  Co.,  80  Ky. 
259 ;  and  cases  cited  in  note,  42  Am. 
St.  Rep.  at  408. 


§  90]  POWER  OF  EMINENT  DOMAIN.  105 

is  entitled  to  a  judicial  decision  upon. the  necessity  for  the  extent 
or  quantity  of  land  which  a  subordinate  agency  is  seeking  to  con- 
demn for  a  proper  work.  There  is  much  authority  in  support  of 
the  doctrine  that  a  court  may  restrain,  limit,  or  avoid  a  taking  if 
it  judges  that  more  land  is  being  appropriated  than  is  reasonably 
needed.47  But  in  the  proper  case  for  the  application  of  this  doc- 
trine the  issue  is  really  as  to  the  true  nature  of  the  use  for  which 
a  part  of  the  property  is  to  be  taken.48  "If  the  amount  sought 
to  be  condemned  is  in  excess  of  that  necessary  for  the  improve- 
ment, the  appropriation  of  such  excess  is  not  for  the  public 
use."  49  If  it  appear  that  the  taking  of  the  excess  is  for  an  ul- 
terior object — speculation  or  profit — the  question  is  still  as  to 
the  purpose.  The  discretion  is  also  limited  by  the  rule  that  a  dis- 
cretionary authority  cannot  be  exercised  unreasonably. 

§90.  What  constitutes  a  taking. — It  is  not  necessary  that 
there  should  be  a  physical  taking  of  the  property.  It  may  be  by 
restricting  the  use  or  depriving  the  owner  of  an  incorporeal 
right,50  such  as  by  the  flowing  of  lands  or  the  diversion  of  a 
stream.51  The  owner  of  land  abutting  on  a  navigable  stream 
cannot  be  deprived  of  all  access  to  the  same  without  proper  com- 
pensation,52 although  it  was  at  one  time  held  that  when  the  title 
to  the  bed  of  the  stream  was  in  the  state  there  was  no  taking 
when  the  water  front  was  appropriated  for  a  public  purpose.53 

47  Tedens  v.  Sanitary  Disk,  149  whenever  part  of  a  lot  is  required 
111.  87 ;  Stearns  v.  Barre,  73  Vt.  281 ;  for  the  widening  of  a  street  the  en- 
Baltimore  &  O.  R.  Co.  v.  Pittsburg,  tire  lot  may  be  taken  and  the  sur- 
W.  &  K.  R.  Co.,  17  W.  Va.  812.  plus  sold.  Albany  Street,  11  Wend. 
Contra,  Pittsburg,  Ft.  Wayne  &  C.  148 ;  Baltimore  v.  Clunet,  23  Md. 
R.  Co.  v.  Peet,  152  Pa.  488 ;  No.  Mo.  449. 

R.  Co.  v.  Gott,  25  Mo.  540 ;  Lynch  «  Bennett  v.  Marion,  106  la.  628, 

v.  Forbes,  161  Mass.  302 ;  Hayford  76  N.  W.  844. 

v.  Bangor,  102  Me.  340.  50  Pumpelly  v.  Green  Bay,  etc.  Co,. 

«  See  Jones  v.  Tatham,  20  Pa.  13  Wall.  (U.  S.)  166;  Stephens  v. 
398 ;  Long  v.  Louisville,  98  Ky.  67.  Proprietors  of  Canal,  12  Mass.  466 ; 
"To  deny  the  petition  it  should  ap-  Grand  Rapids  Booming  Co.  v.  Jar- 
pear  that  what  is  sought  is  clearly  vis,  30  Mich.  308. 
an  abuse  of  power,  and  a  taking  of  si  Baltimore,  etc.  R.  Co.  v.  M'Gru- 
private  property  for  an  object  not  der,  34  Md.  79,  6  Am.  Rep.  310 ;  Pet- 
required  for  the  convenient  opera-  tigrew  v.  Evansville,  25  Wis.  223. 
tion  of  the  road."    So.  Chicago  R.  52  Railway  Co.  v.  Renwick,  102 
Co.  v.  Dix,  109  111.  237.     It  is  a  U.  S.  180. 

violation   of   constitutional   princi-  ss  Tomlin  v.  Dubuque,  etc.  Ry.  Co., 

pies  for  the  legislature  to  enact  that  32  Iowa,  106,  7  Am.  Rep.  126. 


106  PUBLIC   CORPORATIONS.  [§91 

A  change  of  the  grade  of  a  street  is  not  a  taking  of  the  property 
of  abutting  owners  for  public  use.54  It  was  at  one  time  held  that 
there  was  no  taking  unless  there  was  an  actual  physical  appro- 
priation of  the  property  or  divestiture  of  the  title.  The  damage,  in 
order  to  constitute  a  taking,  must  be  of  such  a  nature  as  to  give 
a  cause  of  action  on  common-law  principles.  Thus,  there  can  be 
no  recovery  for  damages  resulting  from  the  location  of  a  jail, 
although  it  may  result  in  actual  injury  to  property.55 

§91.  The  proceedings. — The  proceedings  which  should  be 
followed  by  an  agency  to  which  the  discretion  has  been  delegated, 
in  order  to  accomplish  a  taking,  are  specified  by  statute.  They 
may  consist  of  merely  recording  a  plan ;  but  in  most  states  they 
consist  of  proceedings  begun  by  petition  to  some  tribunal,  fol- 
lowed by  a  hearing  and  the  assessment  of  damages.  The  petition 
must  show  all  the  jurisdictional  facts  and  substantially  comply 
with  the  statute,  although  it  is  not  necessary  that  it  should  be 
literally  accurate.56 

§  92.  The  tribunal  to  assess  compensation. — In  all  practices, 
it  is  essential  to  the  constitutionality  of  the  authorizing  statute 
that,  either  at  some  stage  of  the  proceedings  for  taking,  or  inde- 
pendently of  them,  the  property  owner  shall  have  an  opportunity 
to  have  his  damages  fixed  by  an  impartial  judicial  tribunal.57  It 
may  consist  of  a  court,  a  court  and  jury,  or  commissioners  selected 
by  the  court.58  It  is  not  necessary,  however,  that  it  should  be  a 
tribunal  exercising  judicial  functions  only.59  The  constitutional 
right  to  a  jury  trial  has  no  application  to  proceedings  for  the  con- 
demnation of  property  under  the  power  of  eminent  domain.60 

s*  Talbot  v.  New  York  &  Harlem  ss  State  v.  Jones,  109  U.  S.  513. 

R.  R.  Co.,  151  N.  Y.  155 ;  Transpor-  w  Shue    v.     Commissioners,    41 

tation  Co.  v.  Chicago,  99  U.  S.  635.  Mich.  638. 

55  Burwell  v.  Vance  Co.,  93  N.  C.  «<>  Kohl  v.  United  States,  91  U.  S. 

73.  375 ;  New  York,  etc.  R.  Co.  v.  Long, 

66  State  v.  Morse,  50  N.  H.  9 ;  In  64  Conn.  424 ;  Martin  v.  Tyler,  4 
re  Grove  Street,  61  Cal.  438.  The  N.  Dak.  278,  25  L.  R.  A.  838 ;  Bru- 
petition  must  contain  an  allegation  gerrnan  v.  True,  25  Minn.  123 ; 
that  there  is  a  necessity  for  taking  Backus  v.  Lebanon,  11  N.  H.  19, 
the  property.  Colville  v.  Judy,  73  35  Am.  Dec.  466.  See  Lewis,  Emi- 
Mo.  651 ;  In  re  Road  in  Sterritt  nent  Domain,  §  311.  For  a  discus- 
Township,  114  Pa.  St.  637.  sion  of  "due  process  of  law,"  see 

57  Ames  v.  Lake  Superior,  etc.  Co.,  Mo.   Pac.  Ry.  Co.  v.  Humes,  115 

21  Minn.  241;  Clifford  v.  Commis-  U.  S.  512. 
sioners,  59  Me.  262. 


§  93]  POWER  OF   EMINENT   DOMAIN.  107 

In  some  states,  however,  the  constitution  provides  for  a  jury  trial 
in  such  cases.61  It  has  been  held  that  this  provision  requires  an 
ordinary  jury  of  twelve  men,62  and  that  the  legislature  cannot 
authorize  a  verdict  by  a  majority  thereof.63 

§93.  Notice  and  hearing. — Since  the  determination  to  es- 
tablish a  public  work  which  will  require  the  taking  of  particular 
land  is,  by  the  better  rule,  purely  a  political  decision,  the  owner 
of  the  property  is  not  entitled  to  any  hearing  on  the  question.64 
Consequently  if  the  process  or  act  designated  by  the  statute  as  the 
mode  of  taking  title  does  not  take  the  form  of  proceedings  which 
include  the  assessment  of  damages,  or  of  judicial  judgment — 
for  example,  where  it  is  simply  the  filing  of  a  plan  in  the  regis- 
try of  deeds — the  owner  is  not  entitled  by  constitutional  rules  to 
any  prior  notice  of  the  action  or  to  be  heard  against  it.65  If  the 
taking  be  invalid  he  may  attack  it  collaterally  unless  a  mode  of 
direct  attack  be  prescribed  by  the  statutes. 

But  the  owner  is  constitutionally  entitled  to  be  heard  in  the 
assessment  of  compensation.  The  statutes  must  provide  for  noti- 
fying him  of  any  proceedings  to  assess  damages,  and  for  giving 
him  an  opportunity  to  be  heard  as  to  the  amount.66  Where  the 
taking  is  by  such  process  as  to  leave  the  owner  to  bring  a  dis- 
tinct proceeding  to  have  his  damages  assessed,  he  is,  of  course, 
entitled  to  notice  that  his  land  has  been  taken.67  This  notice 

61  Paul  v.  Detroit,  32  Mich.  108 ;  constitution  has  fixed  an  indispen- 
Williains  v.   Pittsburg,  83  Pa.   St.  sable  condition  to  its  exercise.  Full 
71.  compensation  must  be  made  to  the 

62  Mitchell  v.  Illinois,  etc.  Ry.  Co.,  owner,  before  the  property  can  be 
58  111.  286.  taken.    A  fair  and  equitable  mode 

63  Jacksonville    etc.    Ry.    Co.    v.  for  ascertaining  the  amount  of  this 
Adams,  33  Fla.  608,   24  L.  R.   A.  compensation,    and    an    undoubted 
272.  fund  from  which  to  pay  it,  must  in 

s*  Cool ey,  Const.  Lim.   (7th  ed.),  all  cases  be  provided,  as  a  neces- 

777.  sary  part  of  the  proceeding  to  ap- 
es Appleton  v.  Newton,  178  Mass,  propriate."  Kramer  v.  Cleveland 

276;  Baltimore  Belt  R.  Co.  v.  Bait-  &  Pittsburg  Railroad  Co.,  5  Oh.  St. 

zell,  75  Md.  94;  Kramer  v.  Cleve-  140;   Abney  v.  Clark,  87  la.  726; 

land  &  Pittsburg  R.  Co.,  5  Oh.  St.  Strachan  v.  Brown,  39  Mich.  168; 

140.  Neeld's  Road,  1  Pa.  St.  353;  Boon- 

ee  "it  requires  no  judicial  con-  ville  v.  Ormrod's  Admr..  26  Mo. 

demnation  to  subject  private  prop-  193 ;  Weymouth  v.  Commrs.,  86  Me. 

erty  to  public  uses.    Like  the  power  391 ;  State  v.  Reed,  38  N.  H.  59. 

to  tax,  it  resides  with  the  legisla-        6?  Appleton  v.  Newton,  178  Mass, 

tive  department,  to  whom  the  dele-  276. 

gation  is  made.    *     *    *    But  the 


108 


PUBLIC   CORPORATIONS. 


[§93 


may  be  constructive  as  by  filing  records  in  the  registry  of  deeds.68 
Where,  as  in  many  states,  the  property  is  taken  and  the  compen- 
sation is  fixed  in  a  single  proceeding  in  court,  prior  notice  of  the 
proceeding  and  a  trial  must  be  provided  for  or  given;  though 
the  notice  may  be  constructive,  as  by  publication.69 

Statutory  requirements  as  to  form  and  manner  of  notice  must 
be  conformed  to,  to  give  jurisdiction  over  the  parties,70  unless  the 
want  of  sufficient  notice  be  waived  by  the  appearance  or  conduct 
of  the  owner.71  It  must  be  given  to  those  who  have  a  vested  in- 
terest of  record  in  the  estate,  but  it  need  not  be  given  to  mere  lien- 
holders  or  to  the  holders  of  a  contingent  or  inchoate  interest.72 
Thus,  it  need  not  be  given  to  a  judgment  creditor,73  or  to  the 
holder  of  the  dower  interest;74  but  it  must  be  given  to  a  mort- 
gagee,75 and  to  both  a  landlord  and  his  tenant.76  But  this  is 
largely  governed  by  the  language  of  the  statute.  As  a  general 
rule,  ' '  all  persons  who  have  any  proprietary  interest  in  the  prop- 
erty taken  or  proposed  to  be  taken  should  be  made  parties  to 


es  "A  taking  of  land  for  a  public 
use  is  strictly  a  proceeding  in  rem, 
the  res  being  within  the  jurisdic- 
tion of  the  State.  In  all  such  cases 
it  is  enough  if  there  is  such  a  no- 
tice as  makes  it  reasonably  certain 
that  all  persons  interested  who 
easily  can  be  reached  will  have  in- 
formation of  the  proceedings,  and 
that  there  is  such  a  probability  as 
reasonably  can  be  provided  for,  that 
those  at  a  distance  also  will  be  in- 
formed. Huling  v.  Kaw  Valley 
Railway  &  Improvement  Co.,  130 
U.  S.  559,  564;  Hager  v.  Reclama- 
tion District  No.  108,  111  U.  S.  701, 
711;  McMillen  v.  Anderson,  95  U. 
S.  37 ;  Davidson  v.  New  Orleans,  96 
TJ.  S.  97;  In  re  Union  Elevated 
Railroad,  112  N.  Y.  61,  75;  Balti- 
more Belt  Railroad  v.  Baltzell,  75 
Md.  94;  State  v.  Messenger,  27 
Minn.  119.  It  is  for  the  legisla- 
ture, within  proper  limitations,  to 
say  what  means  of  knowledge  will 
be  enough  to  put  upon  a  landowner 
the  duty,  within  a  prescribed  time, 


to  take  measures  to  obtain  his  com- 
pensation if  he  wishes  to  save  his 
rights."  Knowlton,  J.,  in  Appleton 
v.  Newton,  178  Mass.  276. 

6»Cupp  v.  Commrs.  19  Oh.  St. 
173 ;  Birge  v.  Chicago,  etc.  Ry.  Co., 
65  Iowa,  440;  Morgan  v.  Chicago, 
etc.  Ry.  Co.,  36  Mich.  42S;  Huling 
v.  Kaw  Valley  R.  Co.,  130  U.  S. 
559. 

TO  Lewis,  Em.  Domain,  §  3C9,  and 
c.  c. 

71  Skinner  v.  Lake  View  Ave.  Co., 
57  111.  151 ;  E.  Saginaw,  etc.  R.  Co. 
v.  Benham,  28  Mich.  459;  Ives  v. 
E.  Haven,  48  Conn.  272. 

72  Girard  v.  Omaha,  etc.  Ry.  Co., 
14  Neb.  270. 

73  Gambel  v.  Stolte,  59  Ind.  446 ; 
Watson  v.  N.  Y.  etc.  Ry.  Co.,  47 
N.  Y.  157. 

T«  City  v.  Kingsboro,  101  Ind.  290. 

75  Voegtly  v.  Pittsburgh,  etc.  Ry. 
Co.,  2  Grant's  Cas.   (Pa.)   243. 

76  For  a  full  treatment  of  this 
subject,  see  Lewis,  Em.  Dem.,  ch. 
XII. 


§  94]  POWER  OP  EMINENT  DOMAIN.  109 

the  proceedings,  and  also  all  other  persons,  if  any,  who  are  re- 
quired to  be  made  parties  by  statute."77 

§  94.  The  compensation. — The  compensation  allowed  should 
be  the  full  reasonable  value  of  the  interest  taken.  In  determin- 
ing the  value  of  land  appropriated  for  public  purposes  "the  same 
considerations  are  to  be  regarded  as  in  a  sale  of  property  between 
private  parties.  The  inquiry  in  such  cases  must  be,  what  is  the 
property  worth  in  the  market,  viewed  not  merely  with  reference 
to  the  uses  to  which  it  is  at  the  time  applied,  but  with  reference 
to  the  use  to  which  it  is  at  the  time  adapted ;  that  is  to  say,  what 
is  it  worth  from  its  availability  for  valuable  uses.  Property  is 
not  to  be  deemed  worthless  because  the  owner  allows  it  to  go  to 
waste,  or  to  be  regarded  as  valueless  because  he  is  unable  to  put 
it  to  any  use.  Others  may  be  able  to  use  it  and  make  it  subserve 
the  necessities  or  conveniences  of  life.  Its  capability  of  being 
made  thus  available  gives  it  a  market  value  which  can  be  readily 
estimated.  So  many  and  varied  are  the  circumstances  to  be  taken 
into  account  in  determining  the  value  of  property  taken 
for  public  purposes,  that  it  is  perhaps  impossible  to  formulate 
a  rule  to  govern  the  appraisement  in  all  cases.  Exceptional  cir- 
cumstances will  modify  the  most  carefully  guarded  rules ;  but  as 
a  general  thing  we  should  say  that  the  compensation  to  the  owner 
is  to  be  estimated  by  reference  to  the  uses  for  which  the  property 
is  suitable,  having  regard  to  the  existing  business  or  wants  of  the 
community,  or  such  as  may  be  reasonably  expected  in  the  imme- 
diate future. ' ' 78  The  improvements  upon  the  property  should 
be  taken  into  consideration.79  Some  cases  hold  that  the  owner 
is  entitled  to  the  market  value  for  the  use  to  which  the  land 
may  be  most  advantageously  applied  and  for  which  it  would 
sell  for  the  highest  price  in  the  market.80  Sentimental  valua- 

77  Sherwood  v.  City,  109  Ind.  410 ;.  been  taken  by  the  county  cannot  be 

Severin  v.  Cole,  38  Iowa,  463.  considered.     Mifflin   Bridge  Co.  v. 

TS  Boom  Co.  v.  Patterson,  98  U.  S.  Juniata  Co.,  144  Pa.  St.  235,  13  L. 

403,  Field,  J. ;  Laurence  v.  Boston,  R.  A.  431. 

119  Mass.  126 ;  Commissioners  v.  so  King  v.  Minneapolis  Ry.  Co., 
Railway  Co.,  63  Iowa,  297;  Chap-  32  Minn.  224.  Where  a  bridge  is 
man  v.  Oshkosh,  etc.  Ry.  Co.,  33  taken  by  a  county  the  measure  of 
Wis.  629;  King  v.  Minneapolis,  32  damages  is  the  value  of  the  prop- 
Minn.  224.  erty  to  the  owners  and  not  to  the 

79  Jacksonville,  etc.    Ry.    Co.    v.  county  taking  it.    The  owners  are 

Walsh,  106  111.  253.     The  cost  of  entitled  to  recover  not  only  the  cost 

repairs  upon  a  toll  bridge  which  has  of  the  structure,  but  also  the  value 


110  PUBLIC   CORPORATIONS.  [§95 

tions  based  upon  associations  cannot  be  taken  into  considera- 
tion, as  it  is  impossible  to  measure  such  matters  in  money.81  The 
jury  in  condemnation  proceedings  cannot  rely  upon  their  own 
judgment  in  the  matter  of  damages  and  reject  the  evidence  of 
competent  witnesses.82 

Neither  the  diminished  value  of  a  stock  of  merchandise,  nor 
the  loss  of  profits  caused  by  removal  made  necessary  by  the 
taking  of  real  estate,  is  a  proper  element  of  damage.83  The  cost 
of  adjusting  a  bridge  erected  by  a  railway  company  for  the 
purpose  of  carrying  its  track  over  a  street-crossing,  after  the 
street  has  been  widened  by  the  city  under  the  power  of  eminent 
domain,  is  a  proper  element  of  damages  to  be  allowed  the  com- 
pany in  proceedings  to  condemn  a  portion  of  its  property  for 
the  purpose  of  such  widening,  notwithstanding  the  fact  that  an 
ordinance  provides  that  the  company  shall  erect  and  maintain 
the  bridge  at  its  own  expense.84 

§  95.  Consequential  injuries. — The  damages  resulting  to 
the  property  of  a  person  by  the  lawful  exercise  by  another  of 
his  legal  rights  is  not  a  taking  of  the  property  of  the  former. 
This  question  arises  when  the  state  engages  in  the  improvement 
of  rivers  and  highways.  It  has  appeared  in  an  earlier  section  that 
the  prevailing  doctrine  is  that  there  can  be  no  recovery  for  in- 
juries resulting  from  the  change  of  the  grade  of  a  street.85  So 
the  owner  of  a  fishery  which  is  reduced  in  value  by  improvements 
made  in  a  navigable  stream  has  no  remedy.86  Mr.  Justice  Miller 
says:87  "The  doctrine  that  for  a  consequential  injury  to  the 
property  of  an  individual  for  the  prosecution  of  improvements  of 
roads,  streets,  rivers  and  other  highways,  there  is  no  redress 
*  *  *  is  a  sound  one  in  its  proper  application  to  many 
injuries  to  property;  *  *  but  we  are  of  opinion  that  the 

decisions  referred  to  have  gone  to  the  uttermost  limit  of  sound 

of  the  franchise.    Montgomery  Co.  Belt  R.  Co.,  102  Mo.  633,  10  L.  R. 

v.  Schuylkill  Bridge  Co.,  110  Pa.  St.  A.  851. 

54.  85  Supra;  §63. 

si  Cooley,  Const.  Lim.    (7th  ed.)  so  Parker  v.  Mill  Dam  Co.,  20  Me. 

819.  353,    37    Am.    Dec.    56;    Common- 

sa  Peoria  Gas  L.  Co.  v.  Peoria  R.  wealth  v.  Look,  108  Mass.  452. 

Co.,  146  111.  372,  21  L.  R.  A.  373.  ST  Pumpelly    v.    Green    Bay,    13 

ss  Becker  v.  Phil.  etc.  R.  Co.,  177  Wall.  166 ;  Talbot  v.  N.  Y.  &  Har- 

Pa.  St.  252,  25  L.  R.  A.  583.  lem  R.  R.  Co.,  151  N.  Y.  155. 

s*  Kansas   City   v.   Kansas   City 


§  96]  POWER   OF   EMINENT   DOMAIN.  Ill 

judicial  construction  in  favor  of  this  principle,  and  in  some  cases 
beyond  it,  and  that  it  remains  true  that  where  real  estate  is 
actually  invaded  by  superinduced  additions  of  water,  earth,  sand 
or  other  material,  or  by  having  any  artificial  structure  placed  on 
it  so  as  to  effectually  destroy  or  impair  its  usefulness,  it  is  a  taking 
within  the  meaning  of  the  constitution,  and  that  this  proposition 
is  not  in  conflict  with  the  weight  of  judicial  authority  in  this 
country,  and  certainly  not  with  sound  principles. ' ' 

§  96.  Benefits. — The  cases  are  conflicting  upon  the  question 
of  the  right  to  set  off  benefits  which  are  special  to  particular 
land,  against  the  damages  awarded.  Certain  cases  hold  that  such 
benefits  cannot  in  any  case  be  offset  against  the  injury  sustained 
by  the  land-owner  ;88  and  this  principle  has  been  incorporated  in 
some  constitutions.89  Others  allow  a  set-off  only  against  inci- 
dental injuries  sustained,90  while  still  others  allow  such  a  set-off 
against  the  value  of  the  land  as  well  as  against  incidental  in- 
juries.91 But  benefits  to  be  allowed  in  any  case  must  be  of  a  kind 
not  common  to  the  public  at  large.92 

§97.  Manner  of  payment. — In  the  absence  of  a  constitu- 
tional requirement  to  the  contrary,  it  is  sufficient  if  an  adequate 
and  certain  remedy  is  provided  whereby  the  land-owner  may 
compel  payment  of  damages.93  In  a  recent  case  94  the  court  said : 
' '  Under  constitutional  provisions  declaring  that  private  property 
shall  not  be  taken  for  public  use  without  just  compensation,  and 
silent  as  to  the  time  of  payment,  it  has  generally,  if  not  univer- 
sally, been  held  that  when  property  was  thus  taken  by  a  private 
corporation,  payment  must  precede  the  taking;  but  where  the 
property  was  taken  directly  by  the  state  or  a  municipality  of  the 
state,  it  has  generally  been  held  a  sufficient  compliance  with  the 
provision  if  the  compensation  was  definitely  ascertained  and  made 


88  Israel  v.  Jewett,  29  Iowa,  475.  92  Commissioners  v.  Johnson,  71 

89  See  Newmann  v.  Metropolitan,  N.  C.  398 ;  Lipes  v.  Hand,  104  Ind. 
etc.  Ry.  Co.,  118  N.  Y.  618.  503.    On  the  general  question,  see 

»o  Robbins  v.  Milwaukee,  etc.  Co.,  Elliott,   Roads  and   Streets,    §  188, 

6  Wis.  637 ;   Shawneetown  v.  Ma-  and  cases  cited, 

son,  82  111.  337 ;   Shipley  v.  Balti-  »s  Sage  v.  Brooklyn,  89  N.  Y.  189. 

more,  etc.  R.  Co.,  34  Md.  336.  9*  Martin  v.  Tyler,  4  N.  Dak.  278, 

91  Putnam  v.  Douglas  Co.,  6  Oreg.  25  L.  R.  A.  838. 
328,  25  Am.  Rep.  627 ;  Root's  Case, 
77  Pa.  St.  276. 


112  PUBLIC   CORPORATIONS.  [§98 

a  charge  upon  the  municipal  fund  for  which  the  credit  of  the 
municipality  was  pledged."  By  many  authorities,  the  party 
must  not  be  required  to  resort  to  a  lawsuit  in  order  to  collect  his 
money.95  Judge  Cooley  says:96  "Whenever  the  necessary  steps 
have  been  taken  on  the  part  of  the  public  to  select  the  property 
to  be  taken,  locate  the  public  work  and  declare  the  appropriation, 
the  owner  becomes  absolutely  entitled  to  the  compensation,  wheth- 
er the  public  proceed  at  once  to  occupy  the  property  or  not.  If  a 
street  is  legally  established  over  the  land  of  an  individual,  he  is 
entitled  to  demand  payment  of  his  damages  without  waiting  for 
the  street  to  be  opened. ' ' 97  "When  the  law  expressly  requires 
that  the  money  shall  be  paid  before  the  property  is  taken,  there 
can  be  no  valid  taking  until  after  the  payment  is  made.98 

§98.  Right  of  appeal. — It  is  for  the  legislature  to  say 
whether  the  land-owner  shall  have  a  right  to  appeal  from  the 
determination  of  the  tribunal  which  is  established  to  determine 
his  damages.99  It  may  provide  for  an  appeal  or  it  may  make 
the  decision  final.  The  trial  in  the  appellate  court  is  de  novo.1 
The  appeal  vacates  the  decision  appealed  from.2  The  usual 
remedy  for  reviewing  erroneous  proceedings  is  by  certiorari,  and 
under  it  only  questions  of  law  are  considered.3 


»5  Shepardson  v.  Milwaukee,  etc.  ss  Martin  v.  Tyler,  4  N.  Dak.  278, 

R.  Co.,  6  Wis.  605.  25  L.  R.  A.  838. 

»o  Cooley,  Const.  Lim.   (7th  ed.)  "  Simms   v.    Hymmes,   121   Ind. 

818.  534;  Matter  of  State  Reservation, 

97  Rogers  v.  Bradshaw,  20  Johns.  132  N.  Y.  734 ;  Fass  v.  Seehawer, 

744 ;  Bloodgood  v.  Mohawk,  etc.  R.  60  Wis.  525 ;  Harwood  v.  Shaw,  126 

Co.,  18  Wend.  9,  31  Am.  Dec.  313 ;  111.  53. 

Brock  v.  Hishen,  40  Wis.  674 ;  Long  i  Hardy  v.   McKinney,   107  Ind. 

v.  Fuller,  68  Pa.  St.  170.    The  same  367. 

rule  has  been  adopted  in  Minnesota  2  Minneapolis     v.     Northwestern 

and  Michigan,  where  the  constitu-  Ry.  Co.,  32  Minn.  452. 

tion    requires    that    compensation  3  Farmington  River  Water-Power 

shall  be  first  paid  or  secured.    State  Co.   v.   County   Com'rs,   112  Mass. 

v.  Messenger,  27  Minn.  119;  State  206;  Tiedt  v.  Carstensen,  61  Iowa, 

v.  Bruggerman,  31  Minn.  493;  Peo-  334. 
pie  v.   Southern  Mich.  Ry.  Co.,  3 
Mich.  496. 


CHAPTER  XI. 


TAXATION  AND   SPECIAL  ASSESSMENTS. 


99.  Power  of  taxation. 
IOC.  Nature    of     special     assess- 
ments. 

101.  Their  constitutionality. 

102.  Purposes  for  which  local  as- 

sessments may  be  levied. 

103.  Method  of  apportionment. 


§  104.  By  benefits. 

105.  The  frontage  rule. 

106.  Property  exempt  from  taxa- 

tion. 

107.  Collection  of  assessments. 
10S.  Personal  liability  for  assess- 
ments. 


§  99.  Power  of  taxation. — The  power  of  taxation  is  an  at- 
tribute of  sovereignty.  In  contemplation  of  law  it  is  always 
imposed  by  the  state,  although  it  may  act  through  the  agency 
of  a  public  corporation.1  Almost  all  municipal  corporations 
have  power  to  levy  taxes  for  certain  purposes.  It  is  ordinarily 
conferred  in  express  terms,2  but  like  other  powers  it  may  be 
implied.  Thus,  when  a  municipal  corporation  is  expressly  em- 
powered to  borrow  money,  it  has  implied  authority  to  levy  a 
tax  to  raise  the  money  to  meet  the  obligation.3  But  the  mere 
fact  of  incorporation  does  not  carry  with  it  the  power  of  taxa- 
tion.4 The  power  can  be  legally  exercised  for  public  purposes 
only.5  Being  a  governmental  power  it  cannot  be  granted  in 


1  Whiting  v.  West  Point,  88  Va. 
905,  15  L.  R.  A.  860,  note. 

2  See  Quid  v.  Richmond,  23  Gratt. 
464,  14  Am.  Rep.  139. 

3  United  States  v.  New  Orleans, 
98  U.  S.  381,  25  L.  ed.  225.  And  see 
Lowell  v.  Boston,  111  Mass.  454,  at 
460. 

4Cooley  Taxation  (2d  ed.),  404, 
and  cases  cited.  In  Minot  v.  West 
Roxbury,  112  Mass.  1,  the  court 
said:  "It  is  well  settled  by  our  de- 
cisions that  towns  derive  all  their 
authority  to  tax  their  inhabitants 
from  the  statutes ;  if  the  authority 
to  tax  for  a  particular  purpose  is 
not  found  there,  either  in  express 


terms  or  by  necessary  implication, 
it  does  not  exist."  Coolidge  v. 
Brookline,  114  Mass.  592.  And  see 
Drummer  v.  Cox,  165  111.  648,  46 
N.  E.  716. 

s  Lowell  v.  Boston,  111  Mass.  454 ; 
Lund  v.  Chippewa  Co.,  93  Wis.  640, 
34  L.  R.  A.  131 ;  Wisconsin  Keeley 
Inst.  Co.  v.  Milwaukee  Co.,  95  Wis. 
153,  70  N.  W.  68,  36  L.  R.  A. 
55;  People  v.  Mayor,  4  N.  Y.  419; 
Daggett  v.  Colgan,  92  Cal.  53,  14 
L.  R.  A.  474,  and  cases  in  note; 
Fallbrook  Irrigation  District  v. 
Bradley,  164  U.  S.  112,  41  L.  ed. 
369. 


8 


113 


114  PUBLIC   CORPORATIONS.  [§  ICO 

perpetuity,  but  may  be  revoked  at  any  time.6  A  municipality 
cannot,  even  for  a  consideration,7  exempt  certain  property  from 
taxation  without  special  legislative  authority.8 

§  100.  Nature  of  special  assessments. — The  special  form  of 
taxation  known  as  local  assessments  has  some  features  which 
distinguish  it  from  general  taxation.9  Although  much  criticised 
and  sometimes  disapproved  of,  it  is  now  settled  that  the  legis- 
lature may.  authorize  municipal  corporations  to  levy  special  as- 
sessments upon  property  so  situated  as  to  be  specially  benefited 
by  certain  public  improvements.  In  order,  however,  that  a  muni- 
cipality may  exercise  this  power  it  must  be  able  to  show  legisla- 
tive authority  therefor.  Ordinarily  the  statute  provides  in  detail 
the  manner  in  which  the  power  is  to  be  exercised.  But  when  the 
power  is  conferred  in  general  words  it  confers  all  the  authority 
essential  to  the  execution  of  the  power  by  the  ordinary  and  ap- 
propriate methods.10  Such  assessments  are  a  peculiar  species  of 
taxation,  "standing  apart  from  the  general  burden  imposed  for 
state  and  municipal  purposes,  and  governed  by  principles  which 
do  not  apply  universally.  The  general  levy  of  taxes  is  understood 
to  exact  contribution  in  return  for  the  general  benefits  of  govern- 
ment ;  and  it  promises  nothing  to  the  persons  taxed  beyond  what 
may  be  anticipated  from  an  administration  of  the  laws  for  indi- 
vidual protection  and  the  general  public  good.  Special  assess- 
ments, on  the  other  hand,  are  made  upon  the  assumption  that  a 
portion  of  the  community  is  to  be  specially  and  particularly  bene- 
fited, in  the  enhancement  of  the  value  of  property  peculiarly 
situated  as  regards  a  contemplated  expenditure  of  public  funds ; 
and  in  addition  to  the  general  levy  they  demand  that  special  con- 


e  Williamson  v.  New  Jersey,  130  »  Bridgeport  v.  R.  Co.,  36  Conn. 

TJ.  S.  189 ;  New  Orleans  v.  Water-  255.    That  an  assessment  for  bene- 

works,  142  U.  S.  79,  35  L.  ed.  943.  fits  is  in  the  nature  of  a  tax  is  no 

i  Austin   v.   Austin   Gas   Co.,   69  longer  questioned.     Sargent  v.  Tut- 

Tex.   180,  7   S.  W.  200.     But  see  tie,  67  Conn.  162,  34  Atl.  Rep.  1028, 

Grant  v.  Davenport,  36  Iowa,  396.  32  L.  R.  A.  822.    But  power  to  tax 

s  Whiting  v.  West  Point,  88  Va.  will  not  authorize  a  local  assess- 

905,  15  L.  R.  A.  860,  and  note ;  Alt-  ment.    Macon  v.  Patty,  57  Miss.  378. 

gelt  v.  San  Antonio,  81  Tex.  436,  13  10  Raleigh  v.  Peace,  110  N.  C.  32, 

L.  R.  A.  383 ;  State  v.  Hannibal  &  14  S.  E.  521,  17  L.  R.  A.  330. 
St.  J.  R.  Co.,  75  Mo.  208;  New  Or- 
leans v.  New  Orleans,  etc.  Co.,  35 
La.  Ann.  548. 


§  101]  TAXATION   AND   SPECIAL   ASSESSMENTS.  115 

tributions,  in  consideration  of  the  special  benefit,  shall  be  made 
by  the  persons  receiving  it.  The  justice  of  demanding  the  special 
contribution  is  supposed  to  be  evident  in  the  fact  that  the  persons 
who  are  to  make  it,  while  they  are  made  to  bear  the  cost  of  a  public 
work,  are  at  the  same  time  to  suffer  no  pecuniary  loss  thereby, 
their  property  being  increased  in  value  by  the  expenditure  to  an 
amount  at  least  equal  to  the  sum  they  are  required  to  pay.  This  is 
the  idea  that  underlies  all  these  levies."  X1  The  levy  of  such  an 
assessment  must  not  be  confounded  with  the  exercise  of  the  power 
of  eminent  domain.12 

§  101.  Their  constitutionality. — The  cases  in  which  the  con- 
stitutionality of  local  assessments  has  been  discussed  turn  largely 
upon  the  construction  of  the  language  of  the  particular  consti- 
tution under  consideration,  and  upon  the  method  of  apportion- 
ment.1 3  The  right  to  levy  such  assessments  is  as  well  established 
as  it  is  possible  by  judicial  decisions  to  establish  any  legal  prin- 
ciple.14 They  do  not  constitute  a  taking  of  property  without  due 
process  of  law  or  without  compensation  to  the  owner.15  Due  proc- 
ess of  law  does  not  require  a  judicial  proceeding.  There  must  be 
an  orderly  proceeding  by  a  tribunal  provided  by  law,  but  the 
determination  of  the  proceeding,  and  the  tribunal,  rests  with  the 
legislature.  It  is  essential,  however,  that  the  owner  shall  at  some 
stage  of  the  proceeding  have  an  opportunity  to  be  heard.  If  such 
provision  is  made,  and  the  owner  has  the  opportunity  to  be  heard 
upon  the  question  of  what  proportion  of  the  tax  shall  be  assessed 
upon  his  land,  there  is  not  a  taking  of  the  property  without  due 

11  Cooley,  Taxation,  p.  606 ;  Du-  378.    For  a  discussion  of  the  jus- 
luth  v.  Dibblee,  62  Minn.  IS ;  Brooks  tice  and  equity  of  this  system  of 
v.  Baltimore,  48  Md.  265.    Mr.  Bur-  taxation,  see  Municipality  v.  Dunn, 
roughs    (Taxation,    p.   460)    says:  10  La.  Ann.  57;  Elliott,  Roads  and 
"An  assessment  for  improvements  Streets,    §  370 ;    Hare,   Am.    Const, 
is  not  considered  as  a  burden,  but  Law,  vol.  I,  p.  301. 

as  an  equivalent  or  compensation  is  State  v.   Reis,  38  Minn.  371 ; 

for  the  enhanced  value  which  the  Stinson  v.  Smith,  8  Minn.  366. 

property  derives  from  the  improve-  1*  See  many  cases  cited  in  a  note 

ment."  to  Ivanhoe  v.  Enterprise,  35  L.  R. 

12  Raleigh  v.  Peace,  110  N.  C.  32 ;  A.  58,  29  Oreg.  245. 

Lewis,  Eminent  Domain,  §  4.     For  IB  Hoyt  v.  East  Saginaw,  19  Mich, 

a  history  of  the  principle  and  a  39 ;  Pray  v.  North  Liberties,  31  Pa. 

discussion  of  the  difference  between  St.   69 ;    Holton   v.  Milwaukee,   31 

general  taxation  and  locnl  assess-  Wis.  27. 
nieuts.  see  Macon  v.  Patty,  57  Miss. 


116  PUBLIC   CORPORATIONS.  [§  102 

process  of  law.16  "Where  this  opportunity  to  be  heard  respect- 
ing the  assessment  is  afforded  the  taxpayer  in  an  action,  there  has 
been  given  him  all  that  the  guaranty  of  due  process  of  law  requires 
and  secures ;  and  he  has  nothing  to  complain  of  in  regard  to  such 
process."17  The  manner  of  giving  notice  of  the  proceedings 
may  be  prescribed  by  the  legislature  and  may  be  by  publication.18 
It  is  not  necessary  that  there  should  be  a  provision  for  appeal  from 
the  decision  of  the  determining  body.  As  said  by  the  supreme 
court  of  Pennsylvania,  such  assessments  "have  always  been  re- 
garded as  a  species  of  taxation,  which,  within  well-defined  limits 
is  constitutional  and  proper,  without  provision  for  such  appeals 
from  the  action  of  those  intrusted  with  the  duty  of  making  or 
revising  such  assessments.  The  principle  is  too  firmly  settled  by 
a  long  line  of  cases  to  be  now  shaken."  19 

§  102.  Purposes  for  which  local  assessments  may  be  levied— 
Benefits. — The  purposes  for  which  special  assessments  may  be 
made  are  numerous.  There  must  exist  the  ordinary  elements 
of  taxation,  and  in  addition  thereto  the  improvement  upon 
which  the  assessment  is  based  must  be  productive  of  special 
local  benefit  to  the  property  upon  which  it  is  assessed.20  The 
local  improvement  must  partake  of  a  permanent  nature,  and 


16  Duluth  v.  Dibblee,  62  Minn.  18.  As  to  necessity  for  notice,  Landis  v. 

17  Reclamation  Dist.  v.  Goloman,  Borough  of  Vineland,  60  N.  J.  L. 
65    Cal.    635,    4    Pac.    678 ;    Paul-  264,  37  Atl.  965. 

sen  v.  City  of  Portland,  149  U.  S.  «  Oil  City  v.  Oil  City  Boiler 
30,  37  L.  ed.  637 ;  McMillen  v.  An-  Works,  152  Pa.  St.  348 ;  Harrisburg 
derson,  95  U.  S.  37,  24  L.  ed.  335 ;  v.  Segelbauin,  151  Pa.  St.  172 ;  Mich- 
Spencer  v.  Merchant,  125  U.  S.  345,  ener  v.  Philadelphia,  118  Pa.  St. 
31  L.  ed.  763 ;  Stuart  v.  Palmer,  74  535 ;  Hainrnett  v.  Philadelphia,  65 
N.  Y.  183 ;  People  v.  Hagar,  52  Cal.  Pa.  St.  146. 

171.    As  to  right  of  owner  to  inter-  20  in  re  Wash.  Ave.,  69  Pa.  St. 

pose  objections  to  regularity  of  pro-  352 ;  Allen  v.  Drew,  44  Vt.  174 ;  Title 

ceedings  after  judgment  of  conflr-  Guarantee  &  T.  Co.  v.  Chicago,  162 

mation,  see  People  v.  Markley,  166  111.  505.     The  general  rule  is  that 

111.  48,  46  N.  E.  742.  a  local  assessment  is  constitutional 

is  Paulsen   v.   City   of   Portland,  only  when  it  confers  a  special  bene- 

supra;  Lent  v.  Tillson,  140  U.   S.  fit.     The  cases  are  collected  in  a 

316 ;  County  of  Hennepin  v.  Bartle-  note,  14  L.  R.  A.  756.    The  contrary 

son,  37  Minn.  343.    As  to  sufficiency  doctrine  is  held  In  re  Bonds  of  Ma- 

of  notice,  see  Lawrence  v.  Webster,  dera    Irrigation    District,    92    Cal. 

167    Mass.    513,    46    N.    E.     123.  296,  -14  L.  R.  A.  755. 


§102] 


TAXATION   AND   SPECIAL   ASSESSMENTS. 


117 


the  benefit  must  flow  from  an  actual  improvement.21  Hence,  a 
local  assessment  should  not  be  made  for  sprinkling  streets,22  or 
for  the  maintenance  and  repair  of  boulevards  and  pleasure 
ways.23  But  such  assessments  are  often  made,  and  it  is  said  that 
they  may  be  made  for  any  purpose  that  tends  to  make  a  street 
more  suitable  and  convenient  for  the  use  of  the  public,  such  as 
grading,24  changing  a  grade,25  paving,26  altering  or  widening 
streets,27  or  constructing  sidewalks.28  Assessments  to  pay  the 
cost  of  repaving  a  street  are  generally  sustained.29  So  the  expense 
of  constructing  drains  in  order  to  carry  off  stagnant  water  which 
may  become  detrimental  to  health  may  be  met  by  the  levy  of 
special  assessments.30  And  "where  any  considerable  tract  of 
land  owned  by  different  persons  is  in  a  condition  precluding  culti- 
vation by  reason  of  excessive  moisture,  which  drains  would  relieve, 
it  may  well  be  said  that  the  public  has  such  an  interest  in  the 
improvement  and  the  consequent  advancement  of  the  general  in- 
terests of  the  locality  as  will  justify  the  levy  of  assessments  upon 
the  owners  for  drainage  purposes.  Such  a  ease  would  seem  to 


21  In  re  Bonds  of  Madeira  Irr. 
Dist,  92  Cal.  296,  14  L.  R.  A.  755, 
28  Pac.  272,  27  Am.  St.  106. 

22  Chicago  v.  Blair,  149  111.  310, 
24  L.  R.  A.  412,  and  cases  cited  in 
note.     Contra,    State   v.   Reis,   38 
Minn.  371,  where  the  court  said: 
"The  only  essential  elements  of  a 
'local  improvement'  are  those  which 
the  term  implies,  viz.,  that  it  shall 
benefit  the  property  on  which  the 
cost  is  assessed  in  a  manner  local 
in  its  nature  and  not  enjoyed  by 
property  generally  in  the  city.    If 
it  does  this — rendering  the  prop- 
erty more  attractive  and  comfort- 
able, and  hence  more  valuable  for 
use — then  it  is  an  improvement." 

23  Crane  v.  West  Chicago  Park 
Com.,  153  111.  348,  26  L.  R.  A.  311. 
An  assessment  may  be  made  to  pay 
the  expenses  of  sweeping  a  street. 
Reinken  v.  Fuehring,  130  Ind.  382, 
15  L.  R.  A.  624. 

24  Wray  v.  Pittsburgh,  46  Pa.  St. 
365. 

25  La  Fayette  v.  Fowler,  34  Ind. 
140. 


26  Schenley  v.  Com.,  36  Pa.  St. 
29;  Petition  of  Burmeister,  76  N. 
Y.  174 ;  Chadwick  v.  Kelly,  187  TJ. 
S.  540,  47  L.  ed.  293.    In  Dewey  v. 
Des  Moines,  101  la.  416,  70  N.  W. 
Rep.  605,  it  is  held  that  a  street- 
paving  improvement  is  a  public  im- 
provement  which   will   support  a 
special   assessment   upon  abutting 
owners  regardless  of  benefits. 

27  Jones  v.  Boston,  104  Mass.  461. 

28  Flint  v.   Webb,  25  Minn.  93; 
Sloan  v.  Beebe,  24  Kan.  343 ;  White 
v.  People,  94  111.  604. 

29Willard  v.  Presbury,  14  Wall. 
676,  20  L.  ed.  719;  Sheley  v.  De- 
troit, 45  Mich.  431 ;  Gurnee  v.  Chi- 
cago, 40  111.  165;  Matter  of  Phil- 
lips, 60  N.  Y.  16;  In  re  Smith,  99 
N.  Y.  424.  Contra,  see  Hammett  v. 
Philadelphia,  65  Pa.  St.  146,  3  Am. 
Rep.  615;  Wistar  v.  Philadelphia, 
80  Pa.  St.  505,  21  Am.  Rep.  112. 

so  Reeves  v.  Wood  Co.,  8  Ohio 
St.  333 ;  People  v.  Haines,  49  N.  Y. 
587. 


118  PUBLIC   CORPORATIONS.  [  §  103 

stand  upon  the  same  solid  ground  with  assessments  for  levee 
purposes,  which  have  for  their  object  to  protect  lands  from  falling 
into  a  condition  of  uselessness.31  But  under  the  rule  of  strict 
construction  of  powers  to  tax,  authority  to  drain  lands  for  public 
health,  and  to  lay  assessments  therefor,  will  not  support  an  assess- 
ment the  main  cost  of  which  is  for  filling  in  land."32  Under 
power  to  make  and  maintain  highways  and  streets  by  special 
assessments,  a  city  has  authority  to  levy  such  assessments  for  the 
construction  of  sewers  and  culverts  on  the  theory  that  they  are 
simply  street  improvements.33  So  the  cost  of  laying  water  pipes 
may  be  levied  upon  property  benefited  thereby.  "The  benefits 
are  local,  as  the  use  of  the  water  must  necessarily  be  mostly  re- 
stricted to  the  property  on  the  lines  both  for  domestic  purposes 
and  the  extinguishment  of  fires.  The  effect  of  supplying  the 
streets  with  water  is  to  enhance  the  value  of  dwelling-houses 
thereon."34 

§  103.  Method  of  apportionment. — The  cost  of  a  public  im- 
provement may  be  met  in  part  by  a  general  tax  and  in  part  by 
special  assessment  levied  upon  the  property  particularly  bene- 
fited. In  fixing  the  basis  of  apportionment  between  individuals, 
there  are  two  methods  in  common  use : 

1.  An  assessment  made  by  assessors  or  commissioners  appointed 
for  the  purpose  under  legislative  authority,  who  are  to  view  the 
estates  and  levy  the  expense  in  proportion  to  the  benefits  which 
in  their  opinion  the  estates  will  receive  from  the  improvements 
proposed. 

2.  An  assessment  by  some  definite  standard  fixed  upon  by  the 
legislature  itself,  and  which  is  applied  to  estates  by  measurements 
of  length,  quantity  or  value.35 

The  determination  of  the  question  whether  an  improvement  is 
general  or  local  is  a  legislative  question,  and  the  action  of  a  city 

si  French  v.   Kirkland,  1   Paige,  33  Hungerford    v.    Hartford,    39 

117 ;  Hagar  v.  Supervisors,  47  Cal.  Conn.    279 ;    Wright    v.    Boston,    9 

222 ;   Hagar  v.  Reclamation  Dist,  Cush.  233 ;  Grimmell  v.  Des  Moines, 

111  U.  S.  701,  28  L.  ed.  569 ;  Fall-  57  Iowa,  144,  10  N.  W.  330. 

brook  Irrigation  District  v.  Brad-  s*  Allentown  v.  Henry,  73  Pa.  St. 

ley,  164  U.  S.  112,  41  L.  ed.  369.  404. 

32  Cooley,  Taxation,  p.  618 ;  Pe-  as  Cooley,  Taxation,  639. 
tition  of  Van  Buren,  79  N.  Y.  384. 
As  to  levees,  see  Williams  v.  Corn- 
mack,  27  Miss.  209. 


§  104]  TAXATION  AND  SPECIAL  ASSESSMENTS.  119 

council  pursuant  to  authority  vested  in  it  by  the  legislature  is  not 
subject  to  review  by  the  courts.  These  questions  must  necessarily 
be  left  to  the  judgment  of  men.  Thus,  where  the  charter  pro- 
vided that  it  should  be  determined  by  a  board  of  public  works, 
the  court  said:  "Their  judgment  is  final  and  conclusive,  and 
cannot  be  reviewed  by  the  district  court  or  any  other  tribunal 
unless  shown  to  be  fraudulent  in  fact,  or  unless  it  is  made  up 
upon  a  demonstrable  mistake  of  fact. ' '  3Q  With  reference  to  a  sim- 
ilar case  the  supreme  court  of  Michigan  said:  "These  officers 
acted  within  the  scope  of  their  powers,  and  the  record  contains 
no  evidence  of  fraud,  corrupt  motive  or  intentional  favoritism. 
The  presumption  is  that  in  making  the  district  and  the  assess- 
ment the  officers  of  the  municipality  acted  in  good  faith,  and  have 
correctly  and  faithfully  exercised  the  discretion  vested  in  them. 
In  such  case,  where  mistake  or  abuse  of  discretion  is  not  manifest 
or  demonstrable,  the  determination  of  municipal  officers  in  whom 
such  discretion  is  vested  is  conclusive,  and  it  is  not  reviewable  by 
the  courts."37 

§  104.  By  benefits. — The  right  to  assess  for  benefits,  as  wo 
have  seen,  is  no  longer  open  to  question.  When  the  assessment 
is  apportioned  according  to  the  benefits  accruing  to  the  property, 
the  legislature  or  the  municipality,  when  duly  authorized,  may 
determine  over  what  territory  the  benefits  are  diffused,  or  it  may 
provide  for  the  appointment  of  assessors  or  commissioners  with 
authority  to  make  the  assessment  upon  such  lands  as  in  their 
judgment  are  specially  benefited.  As  stated  in  the  preceding  sec- 
tion, the  determination  of  questions  of  fact  in  these  proceedings, 
when  free  from  fraud  or  manifest  mistake,  is  not  open  to  review 
by  the  courts.38  It  must  not  be  understood,  however,  that  any 

se  state    v.     Board    of     Public  ^  Powers  v.  City  of  Grand  Rap- 
Works,  27  Minn.  442 ;  State  v.  Dis-  ids,    98    Mich.    393,    57    N.    W. 
trict  Court,  29  Minn.  62,  11  N.  W.  250.     As  to  the  effect  of  fraud  in 
133 ;  Spencer  v.  Merchant,  100  N.  the  determination  to  pave  a  street, 
Y.  585;  Michener  v.  Philadelphia,  see  Dewey  v.  Des  Moiues,  101  la., 
118  Pa.   St.  535.     The  findings  of  416,  70  N.  W.  605. 
commissioners  will  not  be  disturbed  &8  Dewey  v.  Des  Moines,  supra, 
by  courts  save  for  manifest  error,  and  cases  cited. 
In  re  Amberson  Ave.,  179  Pa.  St. 
634,  36  Atl.  Rep.  354. 


120  PUBLIC   CORPORATIONS.  [§  105 

assessment  or  apportionment  which  the  legislature  or  commis- 
sioners may  make  will  be  permitted  to  stand  by  the  court.  The 
proceedings  must  comply  strictly  with  the  requirements  of  the 
statute.  The  improvement  must  be  of  a  public  nature,  and  the 
benefit  accruing  must  result  specially  to  the  property  upon 
which  the  assessment  is  made.  A  work  of  general  benefit  cannot 
be  treated  as  a  special  benefit  and  the  costs  assessed  upon  certain 
property.39 

§105.  The  frontage  rule. — The  apportionment  of  benefits 
according  to  what  is  known  as  the  frontage  rule  is  very  com- 
mon. Under  it  the  line  of  frontage  is  taken  as  the  most  prac- 
tical test  of  probable  benefits.  When  applied  to  city  property 
it  is  probably  as  equitable  as  any  other  system  that  can  be 
adopted.  As  said  by  a  recent  writer:  "The  system  which 
leads  to  the  least  mischievous  and  unjust  consequences  is  that 
which  takes  into  account  the  entire  line  of  the  way  improved 
and  apportions  the  expense  according  to  the  frontage;  for  it 
takes  into  consideration  the  benefit  to  each  property  owner  that 
accrues  from  the  improvement  of  the  entire  line  of  the  way, 
and  does  not  impose  upon  the  lot-owner  an  unjust  portion  of 
the  burden. ' ' 40  The  right  to  apportion  assessments  according  to 
this  rule  is  no  longer  open  to  controversy.41  It  seems,  however, 

39  Baltimore  v.  Hughes,  1  Gill  &  Y.  439 ;  People  v.  Desmond,  186  N. 
J.  480.     See  Thomas  v.  Gain,  35  Y.  232 ;  Bacon  v.  Savannah,  86  Ga. 
Mich.  155 ;  Seely  v.  Pittsburgh,  82  301 ;  Whiting  v.  Townsend,  57  Cal. 
Pa.  St.  360,  22  Am.  Rep.  760 ;  In  re  515 ;  Palmer  v.  Stumph,  29  Ind.  329 ; 
Wash.  Ave.,  69  Pa.  St.  352;  Title  Parker   v.    Challiss,    9    Kan.    155; 
Guarantee  &  T.  Co.  v.  Chicago,  162  modified    by    combining    valuation 
111.  505.     See  the  statement  of  the  and  frontage  in  Newman  v.   Em- 
rule  and  its  exception  in  Raleigh  poria,  41  Kan.  583 ;  Ludlow  v.  Cin- 
v.  Peace,  110  N.  C.  32.  cinnati  S.  R.  Co.,  78  Ky.  357 ;  State 

40  Elliott,     Roads     and     Streets,  v.  Gardner,  34  N.  J.  L.  327 ;  Corry 
§  396.  v.  Foltz,  29  Ohio  St.  320 ;  Magee  v. 

41  Sheley  v.  Detroit,  45  Mich.  431 ;  Com.,   46   Pa.   St.   358;   Beaumont 
Palmyra   v.   Morton,   25   Mo.   594;  v.   Wilkesbarre,   142   Pa.   St.   198; 
Rutherford    v.    Hamilton,    97    Mo.  Davis  v.   Lynchburg,   84  Va.  861; 
543;  Farrar  v.  St.  Louis,  80  Mo.  State  v.  Reis,  38  Minn.  371;  State 
379;  Galesburg  v.  Searles,  114  111.  v.  Norton,  63  Minn.  497;  Raleigh 
217 ;  White  v.  People,  94  111.  604 ;  v.  Peace,  110  N.  C.  32,  17  L.  R.  A. 
Craw  v.  Tolono,  96  111.  255,  36  Am.  330,   and   note,    where   these   and 
Rep.  143;  Springfield  v.  Green,  120  many  other  cases  are  cited.     The 
111.  269 ;  Springfield  v.  Sale,  127  111.  contrary  was  held  in  McBean  v. 
359;  O'Reilley  v.  Kingston,  114  N.  Chandler,  9  Heisk.    (Tenn.)    349; 


§106] 


TAXATION  AND   SPECIAL  ASSESSMENTS. 


121 


that  it  is  not  applicable  to  farm  lands  or  suburban  property. 
With  reference  to  such  an  assessment  the  supreme  court  of 
Pennsylvania  says  that  it  is  "unequal,  unjust  and  unconstitu- 
tional. ' ' 42  But  the  entire  cost  of  the  improvement  in  front  of 
a  lot  cannot  be  levied  upon  that  lot.  Such  a  proceeding  vio- 
lates every  principle  of  equality  and  apportionment.43 

§  106.  Property  exempt  from  taxation. — Although  local  as- 
sessments are  made  by  virtue  of  the  taxing  power  they  are  not 
taxes  within  the  meaning  of  the  word  as  used  in  statutes  ex- 
empting certain  property  from  taxation.44  Express  words  are 
necessary  to  exempt  from  general  taxation  or  special  assess- 
ment.45 In  the  following  cases  the  language  used  was  held  not 
to  include  assessments  for  local  improvements:  Taxation  of 


Peay  v.  Little  Rock,  32  Ark.  31, 
following  Chicago  v.  Larned,  34  111. 
253.  The  latter  case  was  overruled 
by  the  decisions  cited  in  the  pre- 
ceding note.  Railroad  property  may 
be  taxed  on  the  basis  of  frontage 
for  sewer  and  water  connection 
improvements.  Palmer  v.  Danville, 
166  111.  42,  46  N.  E.  629. 

42  Philadelphia  v.  Rule,  93  Pa.  St. 
15;  Seely  v.  Pittsburgh,  82  Pa.  St. 
360,  22  Am.  Rep.  760;  McKeesport 
v.  Soles,  178  Pa.  St.  363,  35  Atl. 
927.  In  Graham  v.  Conger,  85 
Ky.  582,  4  S.  W.  327,  the  system 
of  local  assessments  is  held  not  to 
apply  to  rural  lands  when  it  is 
sought  to  levy  the  cost  of  expensive 
street  improvements  upon  them. 
Under  certain  conditions,  however, 
farm  lands  may  be  subjected  to  an 
assessment.  Thus,  although  the 
laying  of  water  supply  pipes  in  a 
street  on  which  a  farm  abuts  may 
not  benefit  the  farm  in  its  present 
condition,  it  is  subject  to  assess- 
ment for  benefits  if  the  value  is 
thereby  increased  for  any  use  for 
which  the  land  is  adapted.  Clark 
v.  Chicago,  166  111.  84,  46  N.  E. 


730,  distinguishing  Hutt  v.  Chicago, 
132  111.  352,  and  Edwards  v.  Chi- 
cago, 140  111.  440. 

43  Motz  v.  Detroit,  18  Mich.  495 ; 
Morrison  v.  St.  Paul,  5  Minn.  108 ; 
Weller  v.  St.  Paul,  5  Minn.  95; 
State  v.  Jersey  City,  37  N.  J.  L. 
128;  Davis  v.  Litchfleld,  145  111. 
313,  21  L.  R.  A.  563,  note.  See 
Weeks  v.  Milwaukee,  10  Wis.  258; 
Warren  v.  Henly,  31  Iowa,  31. 

4*  Ford  v.  Delta,  etc.  Co.,  164  TJ. 
S.  662,  41  L.  ed.  590;  Farwell  v. 
Des  Moines  Brick  Mfg.  Co.,  97 
Iowa,  286,  66  N.  W.  176,  35  L.  R. 
A.  63;  In  re  Mayor  of  New  York, 
11  John.  77 ;  Baltimore  v,  Cemetery 
Co.,  7  Md.  517 ;  Bridgeport  v.  Rail- 
way Co.,  36  Conn.  255;  Chicago  v. 
Baptist  Theo.  Union,  115  111.  245; 
Atlanta  v.  First  Presb.  Church,  86 
Ga.  730,  12  L.  R.  A.  852,  and  cases 
in  note;  Barber  Asphalt  Pav.  Co. 
v.  St.  Joseph,  183  Mo.  451,  82  S.  W. 
64;  Broad  St.  Ch's  App.,  165  Pa. 
St.  475,  30  Atl.  1007 ;  Phila.  v.  Bur- 
ial Ground  Society,  178  Pa.  St.  533, 
36  Atl.  172,  36  L.  R.  A.  263. 

45  Lima  v.  Cemetery  Ass'n,  42 
Ohio  St.  128. 


122  PUBLIC   CORPORATIONS.  [  §  107 

every  kind,46  taxes  of  every  kind,47  all  taxation,48  all  taxation, 
either  by  state,  parish  or  city,49  all  public  taxes,  rates  and  assess- 
ments,50 all  and  every  county  road,  city  and  school  tax,51  exempt 
from  taxation  of  every  description,52  taxes,  charges  and  imposi- 
tions,53 taxes  and  impositions,54  any  tax  or  public  imposition 
whatever,55  a  tax  on  franchises  in  lieu  of  all  other  taxes,56  exempt 
from  taxation,57  exempt  from  all  taxation  by  state  or  local  laws 
for  any  purpose  whatever.58  Land  owned  by  a  railroad  company 
and  held  in  anticipation  of  being  needed  for  railroad  purposes  at 
an  indefinite  future  time  is  not  exempt  from  assessments  for  street 
improvements  under  a  statute  providing  for  the  payment  of  a 
percentage  of  the  gross  earnings  in  lieu  of  other  taxes  and  assess- 
ments.59 An  assessment  is  not  invalidated  by  exempting  certain 
property  belonging  to  the  state.60 

§  107.  Collection  of  assessments. — Special  assessments  must 
be  collected  in  the  way  provided  in  the  statute.  It  is  generally 
provided  that  the  contractor  who  does  the  work  shall  look  to 
the  assessment  on  the  lot  for  his  compensation.  It  is  sometimes 
provided  that  the  contractor  shall  make  the  collection;  and 
in  such  case  there  is  no  liability  on  the  part  of  the  city.  When, 
however,  it  is  provided  that  the  city  shall  make  the  collection 

46  Sheehan    v.    Good    Samaritan  56  Bridgeport  v.  N.  Y.  &  X.  H.  Ry. 

Hospital,  50  Mo.  155,  11  Am.  Rep.  Co.,  36  Conn.  255,  4  Am.  Rep.  63. 

412.  57  Boston    Seamen's    Friend    So- 

47111.  Cent.  Ry.  Co.  v.  Decatur,  ciety  v.  Boston,  116  Mass.  181,  17 

126  111.  92,  1  L.  R.  A.  613.  Am.  Rep.  153 ;  Roosevelt  Hospital 

48  Winona   &   St.   P.   Ry.   Co.   v.  v.  New  York,  84  N.  Y.  108. 
Water-town,  1  S.  Dak.  46,  44  N.  W.  58  Zable  v.  Louisville  Baptist  Or- 
1072.  phans'  Home,  92  Ky.  89,  13  L.  R.  A. 

49  La  Fayette  v.  Male  Orphans'  668.     The  cases  with  reference  to 
Asylum,  4  La.  Ann.  1.  church    property   are   collected   in 

so  Buffalo  City  Cemetery  v.  Buf-  note  to  Atlanta  v.  First  Presb. 

falo,  46  N.  Y.  506.  Church,  86  Ga.  730,  12  L.  R.  A.  852. 

si  Northern  Liberties  v.  St.  John's  59  State  v.  District  Ct.  of  Ram- 
Church,  13  Pa.  St.  104.  sey  Co.,  68  Minn.  242,  71  N.  W. 

52  Illinois  &  M.  Canal  v.  Chicago,  27. 

12  111.  403.  so  Doyle  v.  Austin,  47  Cal.  353 ; 

53  Paterson  v.  Society,  24  N.  J.  L.     Worcester    Co.    v.    Worcester,    116 
385.  Mass.  193.    The  cases  are  reviewed 

54  State  v.  Newark,  27  N.  J.  L.     in  Atlanta  v.  First  Presb.  Church, 
185.  supra. 

55  Baltimore    v.     Proprietors,  7 
Md.  517. 


§  108]  TAXATION   AND   SPECIAL   ASSESSMENTS.  123 

it  acts  as  a  representative  of  the  contractor,  and  is  not  liable 
to  him  unless  its  officers  fail  in  their  duty  and  thus  prejudice 
the  rights  of  the  contractor.61  Thus,  when  it  is  provided  that 
the  contractor  shall  perform  the  work  and  furnish  the  materials 
required  under  his  contract  according  to  the  plans  and  specifica- 
tions, and  be  entitled  to  his  pay  when  the  fund  for  that  purpose 
shall  be  assessed,  levied  and  collected  by  the  regular  agencies 
of  the  city,  he  has  a  right  to  rely  upon  the  implied  obligation  of 
the  city  to  use  with  due  diligence  its  own  agencies  in  pro- 
curing the  means  to  satisfy  his  claims.  If  the  city  neglects  to 
perform  its  duty  he  may  recover  such  damages  from  it  as  he 
suffers  by  reason  of  such  neglect.62  So  a  city  is  liable  to  a  con- 
tractor for  damages  occasioned  to  him  by  reason  of  its  mistake 
in  the  construction  of  the  law,  as  where  the  ordinance  under 
which  the  assessment  was  made  was  held  void,  and  some  of 
the  claims  for  benefits  were  outlawed  before  a  re-assessment 
could  be  made.63  When  the  proper  authorities  have  accepted 
the  work  as  satisfactory  it  is  conclusive,  and  the  property  owner 
cannot  defend  against  the  assessment  by  showing  that  the  work 
is  not  properly  performed.  "No  misconstruction  or  malcoa- 
struction  of  the  work  arising  from  the  incapacity,  the  honest 
mistake  or  the  fraud  of  the  contractor  would  invalidate  the  as- 
sessment or  relieve  the  parties  assessed  from  the  obligation  to 
pay  it.  In  this  respect  the  property  owners  assessed  under  the 
provisions  of  the  law  for  the  cost  of  a  sewer  must  stand  upon 
the  same  footing  with  parties  assessed  for  taxes  for  the  public 
benefit.  They  take  the  hazard  incident  to  all  public  improve- 
ments of  their  being  faulty  or  useless  through  the  incapacity 
or  fraud  of  public  servants."64  The  amount  of  the  assessment 
should  be  made  a  lien  upon  the  land  benefited  and  a  method 
provided  for  its  sale.65 

§  108.     Personal  liability  for  assessments. — The  English  stat- 
utes make  local  assessments  a  charge  upon  the  land  and  also 

«i  Chambers  v.  Satterlee,  40  Cal.  N.  Y.  30, 19  N.  E.  508. 

497 ;  Lovell  v.  St.  Paul,  10  Minn.  63  Denny  v.  City  of  Spokane,  25 

290.     If  the  city  agrees  to  collect  c.  C.  A.  164,  79  Fed.  719. 

the  assessment  and  fails  to  make  64  State  v.  Jersey  City   29  N.  J. 

a  reasonable  attempt  to  do  so  it  is  LaW,  441 ;  Cooley,  Taxation,  671. 

liable  to  the  contractor.     Morgan  esMcInerny    v.    Reed,    23    Iowa, 

v.  Dubuque,  28  Iowa,  575.  410.     See  Morrison  v.  Hershire,  32 

v.  City  of  Albany,  112  Iowa,  271. 


124  PUBLIC   CORPORATIONS.  [  §  108 

authorize  a  personal  action  against  "the  present  and  future 
owner  of  the  property. "  66  In  many  states  such  a  liability  has 
been  imposed  and  been  unquestioned,67  while  in  others  it  has 
been  sustained  after  full  consideration.68  But  most  of  the  latest 
cases  support  the  view  that  no  personal  judgment  can  be  en- 
tered against  the  owner  of  the  land  benefited.  The  reason  for 
this  rule  is  thus  stated  by  the  supreme  court  of  California : 69 
"To  say  that  the  owner  of  land  bordering  upon  an  improved 
street  can  be  made  personally  liable  for  the  payment  of  the 
improvement  is  equivalent  to  saying  that  his  entire  estate,  real, 
personal,  and  mixed,  whether  bordering  upon  the  street  or  remote 
from  it,  whether  within  the  corporate  limits  or  without,  whether 
ber  efited  or  not,  shall  be  held  responsible  for  the  tax,  which,  in 
turn,  is  equivalent  to  saying  that  his  entire  estate  may  be  taxed 
for  the  improvement,  in  direct  contradiction  to  the  very  terms  of 
the  power."  In  some  states  a  personal  judgment  not  to  exceed 
the  value  of  the  property  is  allowed,70  while  in  others  the  liability 
is  limited  to  the  amount  of  the  fund  realized  from  the  sale  of  the 
land.71  Under  the  prevailing  rule  the  only  judgment  allowable 
is  for  the  enforcement  of  the  lien  upon  the  land  in  the  exact 
manner  specified  by  the  law.72 

ee  Bermondsey  v.  Ramsey,  L.  R.    within  a  state  or  municipality  nec- 
6  C.  P.  247.  essarily  subjects  that  property  to 

67  Emery  v.  Bradford,  29  Cal.  75,     the  lawful  rules  and  regulations  of 
and  cases  cited  in  note  to  Ivanhoe    the  state  or  municipality ;  but  he 
v.  Enterprise,  29  Oreg.  245,  35  L.    does  not  thereby  subject  the  rest  of 
R.  A.  GO.  his  fortune  not  within  such  state  or 

68  Dewey  v.  Des  Moines,  101  la.,    municipality  to  the  jurisdiction  of 
416,    70    N.    W.    805;    Farwell    v.    such  municipality,   unless  he  is  a 
Manufacturing  Co.,  97  la.  28G,  66     citizen  or  resident  of  such  state  or 
N.  W.  176.  municipality  or  transacts  business 

C3  Taylor  v.  Palmer,  31  Cal.  240.  therein."    See  Noonan  v.  Stillwater, 

To  the  same  effect  are  Dempster  v.  33  Minn.  198. 

People,  158  111.  36 ;  111.  Cent.  R.  R.  ™  See  Broadway  Church  v.  Mc- 

Co.  v.  People,  161  111.  244;  Shep-  Atee,  8  Bush  (Ky.)  508,  8  Am.  Rep. 

herd  v.  Sullivan,  166  111.  78,  46  N.  480. 

E.  Rep.  720 ;  Raleigh  v.  Peace,  110  7i  Moale  v.  Baltimore,  61  Md.  224. 

N.  C.  32,  17  L.  R.  A.  330 ;  Ivanhoe  72  Pleasant   Hill   v.   Dasher,   120 

v.  Enterprise,  29  Oreg.  245,  35  L.  Mo.  675;  Clinton  v.  Henry  Co.,  115 

R.    A.    58,    and   note.     Neenan   v.  Mo.  557.     The  right  to  a  personal 

Smith,  50  Mo.  525;  Shaw  v.  Peck-  judgment   under   a   statute   giving 

ett,  26  Vt.  482;  St.  Louis  v.  Allen,  power  to   collect  assessments   "in 

53  Mo.  44.    In  Craw  v.  Tolono,  96  the  same  manner  as  other  taxes  are 

111.  255,  35  Am.  Rep.  143,  the  court  collected"  is  doubted  in  McCrowell 

said :  "A  man  who  owns  real  estate  v.  Bristol,  89  Va.  652, 20  L.  R.  A.  653. 


CHAPTER  XII. 

THE  MANNER  OF  EXERCISING  CORPORATE  POWER. 


§  109.  Charter  provisions. 

110.  Meaning  of  terms. 

111.  Statutory   directions. 


§  112.  Procedure  in  the  enactment 
of  ordinances. 

113.  Where    no     mode    is     pre- 

scribed. 

114.  Illustrations. 


§  109.  Charter  provisions. — The  charter  ordinarily  provides 
for  the  various  methods  by  which  the  corporation  shall  exercise 
the  powers  conferred  upon  it.  Certain  powers  may  be  exer- 
cised through  designated  boards  or  officials  without  reference 
to  the  city  council.  But  as  a  general  rule,  all  powers,  whether 
police  or  contractual,  are  exercised  through  the  body  in  which 
is  vested  the  legislative  function.1  The  formal  expression  of 
the  will  of  this  body  is  evidenced  by  an  ordinance  or  resolution.2 

§110.  Meaning  of  terms. — The  words  " ordinance"  and 
"by-law"  are  practically  synonymous,3  although  in  the  United 
States  the  word  "by-law"  is  used  more  often  in  connection  with 
private  corporations.4  An  ordinance  is  "a  local  law  prescribing 
a  general  and  permanent  rule, ' ' 5  while  a  resolution  is  of  a  special 
or  temporary  character  and  is  ordinarily  enacted  with  less  for- 
mality.6 Comparing  the  different  terms,  Chief  Justice  Lowrie 


iTerre  Haute  v.  Lake,  43  Ind. 
480;  Saxton  v.  St.  Joseph,  60  Mo. 
153. 

2  Dey  v.  Jersey  City,  19  N.  J.  Eq. 
412;  Creighton  v.  Manson,  27  Cal. 
613;  Alton  v.  Mulledy,  21  111.  76. 
It  must  be  by  a  vote  embodied  in 
some   distinct   and   definite   form. 
Schumm  v.  Seymour,  24  N.  J.  Eq. 
143. 

3  Bills  v.  Goshen,  117  Ind.  221, 
20  N.  E.  115,  3  L.  R.  A.  261;  Na- 
tional Bank  of  Commerce  v.  Gren- 
ada, 44  Fed.  262. 

4  Kepner    v.    Commonwealth,    40 
Pa.  St.  124 ;  Taylor  v.  Lambertville, 
43  N.  J.  Eq.  107.    An  ordinance  is 


"the  law  of  the  inhabitants  of  the 
corporate  place  or  district  made  by 
themselves,  or  the  authorized  body, 
in  distinction  from  the  general  law 
of  the  country  or  the  statute  law  of 
the  particular  state."  1  Dillon, 
Mun.  Corp.,  §307;  Willcox,  Corp. 
73;  2  Kyd,  Corp.  95,  98;  Common- 
wealth v.  Turner,  1  Cush.  (Mass.) 
493. 

5  Citizens'  Gas  &  Mining  Co.  v. 
Elwood,  114  Ind.  332. 

eBlanchard  v.  Bissell,  11  Ohio 
St.  96;  State  v.  Bayonne,  35  N.  J. 
L.  335;  Kepner  v.  Commonwealth, 
40  Pa.  St.  124. 

125 


126  PUBLIC   CORPORATIONS.  [§  111 

said : 7  "  '  Regulation '  is  the  most  general  of  them  all,  mean- 
ing any  rule  for  the  ordering  of  affairs  public  or  private ;  and  it 
thus  becomes  the  generic  term  from  which  all  the  others  are 
defined,  specified  and  differentiated.  'Ordinance'  is  the  next 
most  general  term,  including  all  forms  of  regulation  by  civil 
authority,  even  acts  of  parliament.  With  us  its  meaning  is 
usually  confined  to  corporation  regulations.  Ordinances  are  all 
sorts  of  rules  and  by-laws  of  municipal  corporations.  'Resolu- 
tion' is  only  a  less  solemn  or  less  usual  form  of  an  ordinance.  It 
is  an  ordinance  still  if  there  is  anything  intended  to  regulate  the 
affairs  of  a  corporation." 

§  111.  Statutory  directions. — "Where  a  power  is  conferred 
by  statute  and  the  manner  of  its  exercise  is  prescribed,  all  other 
modes  are  impliedly  prohibited.8  Such  directions  must  be 
strictly  and  literally  complied  with,  as  they  are  in  effect  limita- 
tions upon  the  grant.9 

§  112.  Procedure  in  the  enactment  of  ordinances.— Statu- 
tory directions  as  to  the  procedure  to  be  observed  in  the  enactment 
or  ordinances  are  mandatory,  and  if  not  complied  with  the  ordi- 
nance is  void.10  But  if  the  mode  of  procedure  is  left  to  the 

7  Kepner    v.    Commonwealth,    40  the  failure  of  the  clerk  to  comply 

Pa.  St.  124,  at  130;  Comm.  v.  Tur-  with   a   statute   requiring   him   to 

ner,  1  Cush.  493.  place   his   certificate   in    the  jour- 

»Des    Moines    v.    Gilchrist,    67  nal  of  the  proceedings  and  on  the 

Iowa,  210;  Zottman  v.  San  Fran-  ordinance,  when  all  other  require- 

cisco,  20  Cal.  96,  81  Am.  Dec.  96.  ments  are  complied  with.    Boehme 

9  State  v.  Newark,  25  N.  J.   L.  v.  Monroe,  106  Mich.  401,  64  N.  E. 

399;  Iowa  Land  Co.  v.  County  of  204. 

Sac,  39  Iowa,  124,  at  149 ;  Mayor  10  Jacksonville  v.  Ledwith,  26  Fla. 

v.  Porter,  18  Md.  284,  79  Am.  Dec.  163,  9  L.  R.  A.  69 ;  Altoona  v.  Bow- 

686;  Ferguson  v.  Halsell,  47  Tex.  man,   171   Pa.    St.   307;    Bloom   v. 

421 ;  Sadler  v.  Eureka  Co.,  15  Nev.  Xenia,  32  Ohio  St.  461 ;  Welker  v. 

39;  Glass  Co.  v.  Ashbury,  49  Cal.  Potter,  18  Ohio  St.  85;  Blanchard 

571 ;  McCoy  v.  Briant,  53  Cal.  247.  v.  Bissell,  11  Ohio  St.  101 ;  Cantril 

In  Zottman  v.   San  Francisco,  20  v.   Sainer,  59  Iowa,  26;   Herzo  v. 

Cal.  96,  81  Am.  Dec.  96,  Field,  C.  J.,  San  Francisco,  33  Cal.  134 ;  Smith 

said :   "When   the  mode  in   which  v.  Emporia,  27  Kan.  528 ;  State  v. 

their  power  on  any  given  subject  Newark,  25  N.  J.  L.  399;  Danville 

can  be  exercised  is  prescribed  by  v.  Shelton,  76  Va.  325.     As  to  re- 

their  charter  the  mode  must  be  fol-  quirement  of  a  majority  vote,  see 

lowed.    The  mode  in  such  cases  con-  111.  T.   &   Sav.   Bank  v.   Arkansas 

stitutes  the  measure  of  the  power."  City,  76  Fed.  Rep.  271,  34  L.  R.  A. 

An  ordinance  is  not  invalidated  by  518.    If  in  the  charter  it  is  required 


§113] 


MANNER  OF   EXERCISING   CORPORATE   POWER. 


127 


municipal  body  it  may  be  determined  by  an  ordinance,  and  the 
mode  so  provided  must  be  observed  in  the  enactment  of  all 
ordinances.1 1  There  seems  to  be  a  tendency  toward  allowing 
municipalities  to  provide  their  own  rules  of  procedure.12 

§  113.  Where  no  mode  is  prescribed. — When  a  power  exists 
and  the  manner  of  exercising  it  is  not  declared,  the  council 
may  proceed  either  by  way  of  ordinance  or  resolution.13  As  a 
general  rule,  however,  it  may  be  said  that  all  general  and  per- 
manent acts  should  be  in  the  form  of  ordinances,14  while  minis- 
terial acts  may  be  by  resolution.15  The  difference  is  not  so  much 
in  the  nature  of  the  act  as  in  the  manner  of  enactment.  Both 
are  legislative  acts;  and  when  it  appears  that  a  resolution  was 
passed  with  all  the  formalities  required  for  an  ordinance,  it  is 
generally  held  valid  as  an  ordinance.16  Where  a  contract  which 


that  there  shall  be  a  publication  of 
an  ordinance  between  the  second 
and  third  reading,  such  publication 
may  be  shown  aliunde  the  records 
of  the  council.  State  v.  New  Bruns- 
wick, 58  N.  J.  L.  255. 

11  Swindell  v.  State.  143  Ind.  153. 

12  See   Swift  v.   People,  162  111. 
534.  33  L.  R.  A.  470. 

13  Crawfordsville  v.  Braden,  130 
Ind.  149,  30  Am.  St.  Rep.  214,  14 
L   R   A.  268;  Butler  v.  Passaic,  44 
N.  J    L.  171  ;  State  v.  Jersey  City, 
27  N.  J.  L.  493;  Green  v.  Cape  May, 
41  N.  J.   L.   45,  46;   Burlington  v. 
Dennison,  42  N.  J.  L.  165;  Quincy 
v    Chicago,  etc.  R.  Co.,  92  111.  21; 
Indianapolis    v.    Imberry,    .17    Ind. 
175;  First  Municipality  v.  Cutting, 
4  La.  Ann.  335;  Halsey  v.  Rapid 
Tr    Co..  47  N.  J.  Eq.  380,  20  Atl. 
859.      See    note    to     Robinson     v. 
Franklin.  1  Humph    156,  in  34  Am. 
Dec.  625;  McGavock  v.  Omaha,  40 
Neb.  64.  58  N.  W.  543. 

14  A  common  council  should  act 
by  ordinance  in  organizing  a  fire  de- 
partment, in  promoting  a  plan  of 
government  for  it,  or  in  prescribing 
the  manner  of  the  election  of  its 


officers  and  their  duties.  But  it 
may  act  by  resolution  in  purchas- 
ing the  fire-engine.  Green  v.  Cape 
May,  41  N.  J.  L.  45.  See  the  fol- 
lowing cases,  which,  however,  are 
controlled  by  statute :  City  of  Pater- 
son  v.  Barnet,  46  N.  J.  L.  62 ;  Grim- 
mell  v.  Des  Moines,  57  Iowa,  144. 

is  Sower  v.  Philadelphia,  35  Pa. 
St.  231 ;  San  Francisco  Gas  Co.  v. 
San  Francisco,  6  Cal.  190. 

is  Shenck  v.  Borough,  181  Pa.  St. 
191 ;  Tipton  v.  Norman,  72  Mo.  380; 
Rumsey  Mfg.  Co.  v.  Schell  City,  21 
Mo.  App.  175;  Gas  Co.  v.  San  Fran- 
cisco, 6  Cal.  190;  Sower  v.  Phila- 
delphia, 35  Pa.  St.  231;  Drake  v. 
Hudson  River  R.  Co.,  7  Barb.  (N. 
Y.)  508,  at  539;  Municipality  v. 
Cutting.  4  La.  Ann.  335.  In  City  of 
Delphi  v.  Evans,  36  Ind.  90,  the 
court  said:  "We  do  not  regard  the 
name  or  form  of  the  order  as  of  the 
substance  of  the  thing.  It  may  be 
done  by  an  ordinance,  by  a  motion, 
or  resolution ;  but  whatever  mode 
may  be  adopted,  it  must  comply 
with  the  requirements  of  the  char- 
ter." A  resolution,  to  have  the  ef- 
fect of  a  law,  must  be  passed  with 


128  PUBLIC   COEPOEATIONS.  [§  114 

the  municipality  is  authorized  to  enter  into  is  not  required  to 
be  made  in  the  form  of  an  ordinance,  it  may  be  by  resolution.17 
But  an  act  which  the  charter  specifically  requires  to  be  done 
by  ordinance  cannot  legally  be  done  by  resolution,18  although 
one  that  is  authorized  to  be  done  by  resolution  may  be  done  by 
ordinance.19 

§  114.  Illustrations. — An  ordinance  has  been  held  necessary 
to  authorize  the  grading  of  a  street,20  to  change  the  width  of  a 
sidewalk,21  to  appoint  a  commission  to  assess  damages  resulting 
from  the  widening  of  a  street,22  to  fix  the  compensation  of  offi- 
cers,23 to  provide  for  the  payment  of  license  fees,24  to  authorize 
the  specific  improvement  of  city  property  under  a  general  power 
to  pass  all  proper  and  necessary  laws  providing  for  improve- 
ments,25 or  to  authorize  the  use  of  a  street  or  alley.26 

On  the  other  hand,  the  council  may  by  resolution  authorize  the 
construction  of  a  sewer,27  remove  the  clerk  of  the  corporation,28 
authorize  the  opening  of  a  new  street,29  the  purchase  of  fire  ap- 
paratus,30 the  acceptance  of  a  dedication,31  the  improvement  of 


all  the  formalities  required  in  the  council    the   power   to   pass   ordi- 

enactment  of  a  law.    Thus,  money  nances   to   regulate  the  sidewalks 

cannot  be  appropriated  by  a  joint  and  streets. 

resolution  when  the  constitution  re-  22  State  v.  Bergen,  33  N.  J.  L.  72. 

quires  that  no  money  can  be  drawn  23  Central  v.  Sears,  2  Colo.  588 ; 

except  in  pursuance  of  appropria-  Smith  v.  Com.,  41  Pa.  St.  335. 

tions  made  by  law.    May  v.  Rice,  2*  See  People  v.  Crotty,  93  111. 

91  Ind.  546 ;  Burritt  v.  Commission-  180. 

ers  of  State  Contracts,  120  111.  322.  25  Zottman  v.  San  Francisco,  20 

IT  Illinois  Trust  &  Sav.  Bank  v.  Cal.  96. 

Arkansas  City,  76  Fed.  271.  26  Indianapolis  v.  Miller,  27  Ind. 

is  Cape  Girardeau  v.  Fougen,  30  394. 

Mo.  App.  551.    A  resolution  is  not  27  State  v.  Jersey  City,  27  N.  J.  L. 

the   legal    equivalent   of   an   ordi-  493. 

nance.  City  of  Paterson  v.  Barnet,  28  Landow  West  v.  Burtram,  26 

46  N.  J.  L.  62.  Ont.  Rep.  161. 

is  Los    Angeles   v.    Waldron,    65  29  Sower  v.  Philadelphia,  35  Pa. 

Cal.  283.  St.  231. 

20  State  v.  Bayonne,  35  N.  J.  L.  so  Green  v.  Cape  May,  41  N\  J. 
335.  L.  45. 

21  Cross  v.  Mayor  of  Morristown,  si  state  v.  Elizabeth,  37  N.  "3.  L. 
18  N.  J.  Eq.  305,  decided  under  a  432. 

statute   granting    to    the   common 


§  114]  MANNER  OF  EXERCISING  CORPORATE  POWER.  129 

a  street,32  the  laying  of  a  tax  for  a  specific  purpose,33  or  empower 
the  mayor  to  appoint  a  commission  of  architects  to  report  upon 
the  safety  of  a  building.34  So,  when  an  ordinance  requires  a 
license  and  authorizes  the  council  to  fix  the  license  fee  as  it  shall 
from  time  to  time  think  proper,  the  fee  may  be  fixed  by  resolu- 
tion.35 No  rules  of  any  particular  value  can  be  laid  down  on  this 
subject,  as  each  case  must  be  determined  after  a  careful  examina- 
tion of  the  charter  under  which  the  council  is  acting. 

32  Indianapolis    v.    Imberry,    17  character  and  prescribes  no  perma- 
Ind.    175,    where    the    court    said :  nent  rule  of  government."    Blanch- 
"The  manner  in  which  the  order  or  ard  v.  Bissell,  11  Ohio  St.  103. 
determination  of  the  council  that  34  Egan  v.  Chicago,  5  111.  App.  70. 
a    given    street   or   alley,    or   part  35  City  of  Burlington  v.  Putnam 
thereof,  shall  be  improved,  is  to  be  Ins.  Co.,  31  Iowa,  102;  Arkadelphia 
expressed,  is  not  pointed  out  in  the  Lumber  Co.  v.  City  of  Arkadelphia, 
paramount  law."  56  Ark.  370,  19  S.  W.  1053.     See 

33  it  is  an  act  of  "a  temporary  People  v.  Grotty,  93  111.  ISO. 


CHAPTER  XIII. 


THE  FORM  AND  ENACTMENT  OF  ORDINANCES. 


§115.  The  form. 

116.  The  title. 

117.  The  enacting  clause. 

118.  The  penalty. 

119.  Need  not  recite  authority. 

120.  Council  meeting. 

121.  Introduction — Notice. 

122.  Readings. 

123.  Suspension  of  the  rules. 

124.  Presumption  as   to   regular- 

ity. 

125.  Signing. 

126.  Approval. 

127.  Approval — Illustrations. 


§  128.  The  executive  veto. 

129.  Necessity  for  publication. 

130.  Publication,  when  directory. 

131.  Ultra  vires  acts  of  officials. 

132.  Manner  of  publication. 

133.  Designation  of  paper. 

134.  Location  of  paper — "Printed 

and  published  in  the  city." 

135.  Manner  and  sufficiency. 

136.  Distinction  between  publica- 

tion and  notice. 

137.  Time  and  period. 

138.  Proof  of  publication. 


§  115.  The  form. — An  ordinance  should  properly  take  the 
form  of  a  statute,  although  this  is  not  essential  to  its  validity, 
as  it  is  sufficient  if  it  contains  the  substance  of  an  ordinance 
and  is  properly  enacted.1  There  should  be  a  title,  an  enacting 
clause,  a  repealing  clause,  and  a  provision  fixing  the  time  when 
the  ordinance  will  take  effect.  Certain  requirements  as  to  form  are 
commonly  found  in  charters  and  statutes. 

§  116.  The  title. — It  is  generally  provided  that  the  ordinance 
shall  relate  to  but  one  subject,  which  shall  be  expressed  in  the 
title.  Such  provisions,  like  those  found  in  constitutions  relat- 
ing to  statutes,  are  intended  to  guard  against  fraud  and  surprise 
and  are  governed  by  the  same  rules  of  construction.2  Constitu- 
tional provisions  with  reference  to  the  title  of  a  statute  do  not 


Rumsey  Mfg.  Co.  v.  Schell  City,    745.     Such  provisions  are  manda- 


21  Mo.  App.  175. 


tory.    Missouri  Pac.  R.  Co.  v.  City 


2  Esling's  Appeal,  89  Pa.  St.  205 ;  of  Wyandotte,  44  Kan.  32,  23  Pac. 

State  v.  Cantieny,  34  Minn.  1,  24  950.       The     construction     of     the 

N.  W.  458;  Bergman  v.  St.  Louis,  ordinance  cannot  be  controlled  by 

etc.  R.  Co.,  88  Mo.  678;   Stebbins  the  title.     State  v.  Beverly,  45  N. 

v.    Mayer,    38    Kan.    573,    16   Pac.  J.  L.  288. 

130 


§117] 


FORM   AND   ENACTMENT   OF   ORDINANCES. 


131 


apply  to  municipal  ordinances  unless  expressly  made  applicable 
thereto.3 

§  117.  The  enacting  clause. — An  ordinance  should  show  on 
its  face  that  it  was  passed  by  a  body  having  authority  to  pass 
it.4  Properly  there  should  be  an  enacting  clause,  as  "Be  it  en- 
acted by  the  Common  Council  of ."  But  the  absence  of 

such  clause  is  not  fatal,  even  when  required  by  the  charter,  as 
the  record  of  the  passage  of  the  ordinance  is  a  sufficient  decla- 
ration that  it  is  the  act  of  the  council.5 

§  118.  Penalty. — A  criminal  ordinance  must  contain  provis- 
ions for  a  definite  penalty,  as  this  cannot  be  left  to  the  discretion 
of  the  court.6  This  penalty  must  be  reasonable  in  amount  in  view 
of  the  nature  of  the  offense.7  It  is  sufficiently  definite  if  it 
fixes  the  maximum  amount  of  the  penalty,  as  "it  is  in  har- 
mony with  our  system  of  jurisprudence  to  allow  the  court  or 


sin  re  Haskell,  112  Cal.  412,  32 
L.  R.  A.  527;  Tarkio  v.  Cook,  120 
Mo.  1,  41  Am.  St.  678;  People 
v.  Wagner,  86  Mich.  594,  24  Am. 
St.  141;  People  v.  Hanrahan,  75 
Mich.  611,  4  L.  R.  A.  751.  See  re 
Thomas,  53  Kan.  659,  37  Pac.  171. 

4  Hawkins  v.  Huron,  2  U.  C.  C. 
P.  72. 

s  People  v.  Murray,  57  Mich.  396, 

24  N.  W.  118.    A  charter  provision 
requiring  that  an  ordinance  shall 
contain  an  enacting  clause  is,  in 
the  absence  of  terms  expressing  a 
contrary  intention,  directory  only, 
and  will   not  invalidate  an  ordi- 
nance   which    merely    omits    the 
clause.    Tarkio  v.  Cook,  120  Mo.  1, 

25  S.    W.    202,    41    Am.    St.    678; 
St.   Louis   v.   Foster,   52   Mo.   513. 
Contra,   Galveston,   etc.   R.   Co.  v. 
Harris    (Tex.    Civ.    App.),    36    S. 
W.     776.      The    omission    of    the 
name  of  the  town  from  the  enact- 
ing clause  will  not  invalidate  the 
ordinance  if  it  appears  from  the 
title  that  it  was  an  ordinance  of  the 
particular  town  and  is  shown  that 
it  was  regularly  passed  and  in  other 


respects  conforms  to  the  statutory 
requirements.  State  v.  Fountain, 
14  Wash.  236,  44  Pac.  270.  The  au- 
thorities on  the  question  of  the  ef- 
fect of  the  omission  of  an  enacting 
clause  from  a  statute  are  conflict- 
ing. In  State  v.  Patterson,  98  N.  C. 
660 ;  State  v.  Rogers,  10  Nev.  250 ; 
Burritt  v.  Commissioners,  120  111. 
322,  and  May  v.  Rice,  91  Ind.  546, 
it  is  held  that  the  constitutional  re- 
quirement of  an  enacting  clause  is 
mandatory.  McPherson  v.  Leon- 
ard, 29  Md.  377,  and  Cape  Girar- 
deau  v.  Riley,  52  Mo.  424,  hold  such 
a  provision  directory  only.  See, 
also,  Watson  v.  Corey,  6  Utah,  150, 
and  Hill  v.  Boyland,  40  Miss.  618. 

estate  v.  Worth,  95  N.  C.  615; 
Bowman  v,  St.  John,  43  111.  337; 
Melick  v.  Washington,  47  N.  J.  L. 
254;  State  v.  Ziegler,  32  N.  J.  L. 
262 ;  In  re  Frazee,  63  Mich.  396,  30 
N.  W.  72,  6  Am.  St.  R.  310. 

1 1n  re  Frazee,  63  Mich.  396 ;  Mo- 
bile v.  Yuille,  3  Ala.  137;  re  Ah 
You,  88  Cal.  99,  25  Pac.  974,  22  Am. 
St.  280,  11  L.  R.  A.  408. 


132  PUBLIC  CORPORATIONS.  [§  118 

jury  trying  the  cause  to  fix  the  penalty  within  the  bound  pre- 
scribed, with  the  right  to  vary  in  amount  according  to  the 
gravity  of  the  offense."8  It  has  been  held  that  the  precise  pen- 
alty for  the  infraction  of  a  police  ordinance  must  be  provided 
for  in  the  ordinance,  and  that  an  ordinance  which  provides 
that  a  justice  of  the  peace  may  impose  a  penalty  between  two 
specified  limits  is  invalid.9  It  is  sometimes  provided  that  con- 
viction for  the  violation  of  an  ordinance  shall  work  a  forfeiture 
of  a  license.  It  has  been  recently  held  that  a  city  cannot  enact 
such  an  ordinance,  because  it  would  operate  as  an  extinguish- 
ment of  a  right  which  can  only  be  legally  extinguished  by  the 
city  council.  Thus,  an  ordinance  which  provided  that  a  con- 
viction of  a  violation  of  its  provisions  should  operate  as  a  revo- 
cation of  a  liquor  license  was  held  to  be  an  unauthorized  dele- 
gation of  authority  to  revoke  a  license,  which  by  the  charter 
was  conferred  exclusively  upon  the  city  council.10  But  such  an 
ordinance  was  sustained  in  Minnesota  without  reference  to  this 
objection.  It  was  there  held  that  the  provision  for  the  revoca- 
tion of  the  license  was  not  a  part  of  the  penalty,  and  did  not 
change  the  grade  of  the  offense.  It  was  held  that  the  granting 
of  the  license  was  a  mere  privilege,  and  that  the  provision  in 
the  charter  that  conviction  of  the  licensee  for  a  violation  of  the 
liquor  ordinance  should  work  a  revocation  was  valid.  The 
court  said:  n  "While  the  revocation  by  the  court  follows  con- 
viction as  a  consequence  of  the  violation  of  the  ordinance,  it 
has  no  more  the  purpose  or  effect  of  punishment  than  if  the 
license  were  revoked  by  the  mayor  or  city  council,  neither  of 
whom  would  have  the  power  to  impose  punishment  for  the  offense. 
There  is  a  plain  distinction  between  such  a  withdrawal  of  a  special 
privilege  which  has  been  abused,  the  termination  of  a  mere 
license,  and  the  penalty  which  the  law  imposes  as  a  punishment 
for  crime.  The  constitutional  provision  limiting  the  jurisdiction 
of  justices  of  the  peace  by  the  measure  of  the  'punishment' 
which  may  be  imposed  has  no  reference  to  any  such  incidental 
consequences. ' ' 12 

8  Bills  v.  Goshen,  117  Ind.  221,  3        10  State  v.  Rahway,  58  N.  J.  L. 
L.  R.  A.  261.     And  see  Atkins  v.    578. 

Phillips,  26  Fla.  281,  8  So.  429,  10  «  State  v.  Harris,  50  Minn.  128. 
L.  R.  A.  158.  «  State  v.  Larson,  40  Minn.  63, 

» State    v.    Ocean    Grove   Camp    41  N.  W.  363. 
Meeting  Ass'n,  59  N.  J.  L.  110,  35 
Atl.  794. 


§119] 


FORM   AND  ENACTMENT  OF  ORDINANCES. 


133 


§  119.  Need  not  recite  authority. — An  ordinance  need  not 
recite  the  authority  under  which  it  is  enacted.13  Nor  need  it 
recite  the  fact  of  compliance  with  conditions  precedent  to  the 
right  to  enact  the  ordinance.14  "Where  the  authority  is  to  pass 
an  ordinance  if  found  necessary  the  ordinance  need  not  recite 
the  necessity,15  unless  the  charter  requires  it  to  be  so  stated.16 

§  120.  Council  meeting. — A  valid  ordinance  can  only  be  en- 
acted at  a  legally  convened  meeting  of  a  properly  constituted 
council  or  legislative  body  vested  with  authority  to  pass  the 
same  and  acting  in  accordance  with  statutory  formalities.17 

§121.  Introduction — Notice. — "Where  the  charter  provides 
that  an  ordinance  must  be  introduced  at  a  previous  meeting  it 
cannot  be  materially  amended  and  passed  at  the  subsequent 
meeting;  the  amendment  must  have  been  previously  introduced.18 
Nor  under  such  provision  can  an  ordinance  be  passed  at  an 
adjourned  meeting.19 


is  Methodist  P.  Church  v.  Balti- 
more, 6  Gill,  391,  per  Dorsey,  C.  J. ; 
Com.  v.  Fahey,  5  Cush.  408. 

n  Cronin  v.  People,  82  N.  Y.  318 ; 
Coates  v.  New  York,  7  Cow.  585; 
Rex  v.  Harrison,  3  Burr.  1322,  at 
1328. 

is  Coates  v.  Mayor,  7  Cow.  (N. 
Y.)  585;  Young  v.  St.  Louis,  47  Mo. 
492;  Kiley  v.  Forsee,  57  Mo.  390. 

ie  Hoyt  v.  East  Saginaw,  19  Mich. 
39. 

IT  County  of  San  Luis  Obispo  v. 
Hendricks,  71  Cal.  242;  Jackson- 
ville v.  Ledwith,  26  Fla.  163,  9  L. 
R.  A.  69.  The  rules  of  parliamen- 
tary law  need  not  be  observed  un- 
less required  by  the  charter.  (Leg- 
islature.) McDonald  v.  State,  80 
Wis.  411;  McGraw  v.  Whitson,  69 
Iowa,  348,  28  N.  W.  632;  (legisla- 
ture) St.  Louis,  etc.  Co.  v.  Gill,  54 
Ark.  101,  11  L.  R.  A.  452. 

is  State  v.  Bergen,  33  N.  J.  L.  39. 
In  State  v.  Jersey  City,  34  N.  J.  L. 
429,  the  court  said :  "The  object  of 


the  provision  requiring  such  pre- 
vious introduction  would  be  wholly 
frustrated  if  an  ordinance  could  be 
so  materially  amended  and  passed 
at  the  same  meeting,  and  its  sanc- 
tion might  in  all  cases  ba  evaded 
under  the  guise  of  an  amendment." 
See  State  v.  City  of  Hudson,  29  N. 
J.  L.  475.  For  effect  of  an  indefinite 
postponement,  see  Zeiler  v.  Central 
R.  Co.,  84  Md.  304,  34  L.  R.  A.  469. 
19  "An  adjourned  meeting  is  a 
continuation  of  the  same  meeting, 
and  at  such  adjourned  meeting  the 
council  may  do  any  act  which  might 
have  been  done  if  no  adjournment 
had  taken  place.  The  meeting  of 
May  2d,  at  which  the  ordinance  was 
introduced,  was  not  a  meeting  pre- 
vious to  that  of  May  9th,  at  which 
it  was  passed,  but  a  continuation 
of  the  same  meeting;  and  as  the 
ordinance  could  not  have  been 
passed  on  May  2d,  neither  could  it 
be  passed  on  May  9th."  Staates  v. 
Washington,  44  N.  J.  L.  605. 


134  PUBLIC   CORPORATIONS.  [§122 

§  122.  Readings. — A  provision  requiring  every  ordinance  to 
be  read  at  three  different  meetings  before  its  final  passage  is 
mandatory.20  A  reading  by  the  title  for  at  least  one  of  the  three 
readings  is  a  sufficient  compliance  with  such  a  requirement.21  A 
newly-constituted  council  may  take  up  an  ordinance  which  was 
read  twice  in  the  preceding  council,  give  it  a  third  reading  and 
pass  it.22  A  reading  may  be  at  a  special  or  adjourned  meeting.23 
Where  a  charter  requires  an  ordinance  to  be  published  for  a  cer- 
tain time  and  in  a  certain  manner  between  its  second  and  third 
readings,  it  cannot  lawfully  be  amended  in  any  material  respect 
and  read  again  without  the  notice  required  by  the  charter.24  An 
ordinance  which  requires  that  all  ordinances  shall  be  read  three 
times  before  being  passed  and  that  no  ordinance  shall  be  read  the 
third  time  and  passed  on  the  same  day  on  which  it  was  introduced, 
unless  the  rule  be  suspended  by  a  two-thirds  vote,  cannot  be 
repealed  by  a  mere  majority  vote.25 

§  123.  Suspension  of  the  rules. — All  provisions  regulating 
the  passage  of  an  ordinance  under  a  suspension  of  the  rules 
must  be  strictly  observed.  When  the  rules  are  so  suspended 
but  one  ordinance  can  be  passed  under  such  suspension.20 

§  124.  Presumption  as  to  regularity. — All  meetings  of  the 
council  are  presumed  to  be  regularly  conducted.  Thus,  where 
it  is  the  duty  of  the  mayor  to  preside  at  a  council  meeting,  it 
will  be  presumed  that  he  was  present  and  presided.27 

§  125.  Signing. — The  signing  of  an  ordinance  by  a  clerk  of 
the  council  is  a  ministerial  act,  and  if  he  refuses  to  comply 
with  the  requirement  the  presiding  officer  may  appoint  a  deputy 
to  sign  the  same.28  Nor  is  the  signature  of  the  mayor  generally 

20  Weill  v.  Kenfield,  54  Cal.  111.        23  Cutcomp  v.  Utt,  60  Iowa,  156, 
But   see   Barton   v.    Pittsburgh,   4    14  N.  W.  214. 

Brew.   (Pa.)   373.     The  two-thirds  24  state  v.  Newark,  30  N.  J.  L. 

of   the   members   required   to   dis-  303. 

pense  with  a  regular  reading  means  25  Swindell  v.  State,  143  Ind.  153, 

two-thirds  of  the  members  voting  if  42  N.  E.  528. 

they  are  not  less  than  a  majority  20  Bloom  v.  Xenia,  32  Ohio  St. 

which  constitutes  a  quorum.    Zeiler  46 ;  So.  Jersey  Tel.  Co.  v.  Woodbury, 

v.  Central  R.  Co.,  84  Md.  304,  34  73  N.  J.  L.  276,  63  Atl.  4. 

L.  R.  A.  469.  27  Martin  v.  State,  23  Neb.  371, 

21  State  v.  Camden,  58  N.  J.  L.  36  N.  W.  554,  Maxwell,  J.,  dissent- 
515,  33  Atl.  846.  ing. 

22  McGraw  v.  Whitson,  69  Iowa,  28  Preston  v.  Manvers,  21  U.  C. 
348.  Q.  B.  626. 


§  126]  FORM   AND   ENACTMENT  OF  ORDINANCES.  135 

necessary  to  the  validity  of  an  ordinance  which  has  been  regu- 
larly passed  and  recorded.29  But  a  statute  may,  by  its  express 
terms,  make  the  mayor's  signature  essential  to  the  validity  of 
the  ordinance.  But  a  requirement  that  the  mayor  shall  au- 
thenticate all  ordinances  by  his  signature  is  merely  directory.30 
A  direction  in  a  city  charter  that  a  bill  shall  be  signed  in 
open  session  is  mandatory.31  Under  a  statute  providing  that 
"no  bill  shall  become  a  law  until  the  same  is  signed  by  the 
president  of  the  board  of  aldermen  and  the  mayor,"  and  that 
"the  mayor  shall  preside  at  all  meetings  of  the  board  of  alder- 
men," a  signing  by  the  mayor  as  such  only,  is  sufficient.32  When 
an  ordinance  is  required  to  be  signed  by  the  presiding  officer 
and  attested  by  the  clerk,  the  defect  cannot  be  remedied  by 
motion.33 

§  126.  Approval. — The  requirement  of  the  executive  ap- 
proval must  be  distinguished  from  that  of  signing.  Such  ap- 
proval is  generally  made  essential  to  the  validity  of  an  ordinance, 
and  when  such  is  the  case  all  proceedings  under  an  ordinance 
which  has  neither  been  approved  nor  passed  over  a  veto  are  void.34 
"Whenever,  either  by  constitutional  or  legislative  requirement, 
the  president  of  the  United  States,  the  governor  of  a  state  or 
the  mayor  of  a  city  is  required  to  approve  an  act  of  Congress, 
or  of  a  legislature,  or  of  a  court  of  common  council,  the  word 
'  approve '  means  more  than  the  unexpressed  mental  acquiescence 
of  the  individual  in  the  propriety  of  what  has  been  done ;  it  means 
that  the  officer,  in  his  official  capacity  as  the  guardian  of  the 
interests  of  the  community,  having  in  view  its  welfare,  and  not 

29  Martindale  v.  Palmer,  52  Ind.  ^  Barber   Asphalt    Pav.    Co.    v. 

411;   State  v.  Henderson,  38  Ohio  Hunt,    100    Mo.    22,    18    Am.    St. 

St.  644.     It  is  sometimes  expressly  530. 

provided  that  if  the  mayor  neglects  32  Becker  v.  Washington,  94  Mo. 

or  refuses  to  sign  the  ordinance  it  375.     See  Werth  v.  Springfield,  78 

shall  become  a  law  without  his  sig-  Mo.  109. 

nature.    Saleno  v.  Neosho,  127  Mo.  33  Bills  v.   City  of  Goshen,  lit 

627,  27  L.  R.   A.  679,  48  Am.   St.  Ind.  221,  20  N.  E.  115. 

653.  s*  People  v.  Schroeder,  76  N.  Y. 

so  Blanchard  v.  Bissell,  11  Ohio  160 ;  Dey  v.  Jersey  City,  19  N.  J. 

St.  96;  Stevenson  v.  Bay  City,  26  Eq.  412.     Necessity  of  approval  of 

Mich.  44 ;  Martindale  v.  Palmer,  52  order  or  resolution.    Shaub  v.  Lan- 

Ind.  411 ;  McKenzie  v.  Wooley,  39  caster,  156  Pa.  St.  362,  21  L.  R.  A. 

La.  Ann.  944 ;  Opelousas  v.  Andrus,  691. 
37  La.  Ann.  699. 


136  PUBLIC   CORPORATIONS.  [§  127 

his  personal  wish  or  advantage,  shall  consider  the  proposed 
legislation  and  determine  that  it  is  proper,  and  make  that  fact 
known  to  all  men  with  absolute  certainty,  by  some  visible,  unmis- 
takable and  enduring  mark,  to  wit,  by  written  declaration  attested 
by  his  signature. ' ' 35  Where  the  charter  provides  that  the  ap- 
proval of  the  mayor  shall  be  by  his  signature,  his  approval 
cannot  be  shown  in  any  other  way.36  It  has  been  held  there  must 
be  a  formal  and  literal  presentation  for  approval  or  veto,  and 
that  a  requirement,  therefore,  cannot  be  waived  by  the  mayor.37 
The  express  charter  requirement  that  the  ordinance  shall  be  sub- 
mitted to  the  mayor  before  it  becomes  law  is  mandatory.38  And 
if  the  statute  prescribes  the  manner  in  which  the  measure  shall 
be  approved,  the  approval  in  that  manner  cannot  be  dispensed 
with.  Though  the  mayor  puts  the  resolution,  declares  it  adopted, 
and  in  fact  signs  and  approves  it,  this  is  not  in  such  a  case 
sufficient.39 

§  127.  Approval — Illustrations. — Where  the  council  has 
power  to  pass  "by-laws,  ordinances,  resolutions  and  regulations," 
and  the  charter  requires  that  "by-laws  and  ordinances"  shall  be 
approved  by  the  mayor,  the  requirement  extends  to  resolutions.40 
But  a  provision  requiring  all  ordinances  and  resolutions  to  be 
presented  to  the  mayor  for  his  approval  does  not  apply  to  the 
appointment  of  officers  by  the  council.41  It  is  sufficient  if  the 
ordinance  be  approved  by  the  "acting  president  of  the  board  of 
aldermen,"  in  the  mayor's  absence,  where  it  is  provided  by 
statute  that  such  officer  shall  for  the  time  being  perform  the  duties 
of  mayor,  with  all  his  rights,  powers  and  jurisdiction.42 

ss  New  York,  etc.  R.  Co.  v.  City  a  sufficient  approval.     Graham  v. 

of  Waterbury,  55  Conn.  19,  per  Par-  Carondelet,  33  Mo.  262. 

dee,  J.  37  State  v.  Newark,  25  N.  J.  L. 

se  "it  is  enough  to  say    *    *    *  399. 

that  the  charter  provides  but  one  38  Babbidge  v.  Astoria,  25  Oreg. 

mode  for  the  mayor  to  attest  his  ap-  417,    36    Pac.    291,    42    Am.     St. 

proval  of  resolutions,  to  wit,  by  his  796. 

signature.     It  is  impossible  to  sub-  39  Whitney    v.    Port    Huron,    88 

stitute  for  that  any  other  evidence  Mich.  268,  26  Am.  St.  291. 

that  as  an  alderman  or  as  a  private  40  Kepner  v.  Com.,  40  Pa.  St.  124. 

person  he  approved  or  consented  to  But   see   Blanchard  v.   Bissell,   11 

the  resolutions."   Gilfillan,  C.  J.,  in  Ohio  St.  103. 

State  v.  District  Court,  41  Minn.  *i  McDermott  v.  Miller,  45  N.  J. 

518.     Contra,  Woodruff  v.  Stewart,  L.  251. 

63  Ala.  208.    The  signature  affixed  «  Saleno  v.  Neosho,  127  Mo.  627, 

to  the  journal  of  the  council  is  not  27  L.  R.  A.  769. 


§  128]  FORM  AND  ENACTMENT  OF  ORDINANCES.  137 

§  128.  The  executive  veto. — When  an  ordinance  is  vetoed 
there  can  be  but  one  reconsideration ; 43  and  where  the  charter 
provides  that  ' '  at  the  next  meeting  of  the  council  after  a  disap- 
proval by  the  mayor  it  shall  proceed  to  reconsider  the  resolution, " 
it  cannot  be  postponed  to  a  subsequent  meeting.44  Where  an 
ordinance  is  passed  over  the  veto  it  takes  effect  without  further 
act  of  the  executive. 

§  129.  Necessity  for  publication. — It  is  commonly  required 
that  all  ordinances  shall  be  published  before  taking  effect.  This 
just  and  reasonable  provision  must  be  complied  with  in  order 
to  give  validity  to  the  law.45  Under  such  a  provision  actual 
notice  is  not  the  equivalent  of  publication.46  Provisions  relating 
to  publication  are  strictly  construed  when  applied  to  police  ordi- 
nances which  affect  the  personal  rights  and  liberties  of  the  citizen. 
Under  a  constitutional  provision  that  no  person  shall  be  punished 
save  under  a  law  established  and  promulgated  prior  to  the  com- 
mission of  the  offense,  an  ordinance  must  be  published  for  such  a 
time  as  will  give  the  public  a  reasonable  opportunity  to  become 
acquainted  with  its  provisions.47  The  legislature  may  provide 


43  Sauk  v.  Philadelphia,  8  Phila.  Bank  of  Commerce  v.  Grenada,  44 
(Pa.)  117.  Fed.  262.      Where     an     ordinance 

44  Peck    v.    Rochester,    3    N.    Y.  required  that  a  resolution  for  im- 
Supp.  872.  provement  of  a  street  should  be  pub- 

*5  Meyer  v.  Fromm,  108  Ind.  208 ;  lished,  and  provided  that  the  publi- 

Napa    v.    Easterby,    61    Cal.    509 ;  cation  should  be  sufficient  notice  to 

Wain  v.   Philadelphia,   99   Pa.    St.  non-resident     property-owners,     it 

330 ;  Higley  v.  Bunce,  10  Conn.  436 ;  was  held  that  personal  service  upon 

Schwartz  v.  Oshkosh,  55  Wis.  490;  a   property -owner    rendered   publi- 

Elizabethtown  v.  Lefler,  23  111.  90;  cation     unnecessary    as     to     him; 

Stillwater     v.     Moor     (Oklahoma,  Chariton  v.  Holliday,  60  Iowa,  391, 

1893),     33     Pac.     1024.       But     see  14  N.  W.  775. 

Elmendorf  v.  Mayor,  25  Wend.  (N.  47  A  publication  for  seven  days 

Y.)    693.    Publication  in  an  extra  is  sufficient.     Pitts  v.  Opelika,  79 

edition  of  a  daily  paper  only  a  few  Ala.   527.     For   an  illustration   of 

copies  of  which   were  issued  was  the  effect  of  a  requirement  of  pub- 

not  such  a  publication  as  is  con-  lication  of  an  administrative  ordi- 

templated   by   the   law.      State   v.  nance,  see  Stuhr  v.  Hoboken,  47  N. 

Omaha  &  C.  B.  R.  &  B.  Co.,  113  J.  L.  147.     It  is  not  necessary  to 

Iowa,  30,  84  N.  W.  983.  publish  books  and  maps  referred  to 

4«  O'Hara  v.  Park  River,  1  N.  D.  in  an  ordinance.    Napa  v.  Easter- 

279,     47     N.     W.     380 ;     National  by,  76  Cal.  222,  18  Pac.  253. 


138  PUBLIC   CORPORATIONS.  [§  130 

that  the  failure  to  publish  an  ordinance  within  a  stated  time  shall 
not  affect  its  validity,  but  it  can  have  no  retroactive  effect.48 

A  provision  in  a  city  charter  that  the  ayes  and  noes  shall  be 
called  and  published  whenever  the  vote  of  the  council  is  taken 
on  any  proposed  improvement  involving  a  tax  or  assessment  upon 
the  people  is  directory — "the  essential  requirement  being  the 
determination  of  the  improvement  and  not  the  form  or  manner  of 
expressing  that  determination."49 

§130.  Publication  directory. — In  Massachusetts,  certain 
statutes  providing  for  the  publication  of  ordinances  were  held 
to  be  directory.  Thus,  when  ordinances  were  required  to  be 
"published  two  weeks  successively  in  three  newspapers  published 
in  the  city,"  Morton,  C.  J.,  said50  that,  as  there  is  no  provision 
that  the  ordinance  shall  not  take  effect  until  published,  "the 
provision  requiring  publication  is  directory;  it  contemplates  a 
publication  after  the  ordinance  is  enacted,  and  a  compliance 
with  it  is  not  a  condition  precedent  to  the  validity  of  the  ordi- 
nance." 

§  131.  Ultra  vires  acts  of  officials. — When  an  ordinance  is 
passed  and  published  in  the  mode  prescribed  by  the  charter,  it 
is  valid  although  the  city  officials  exceeded  their  authority  in 
incurring  a  debt  for  the  publication.51 

§  132.  Manner  of  publication. — When  no  method  of  publi- 
cation is  prescribed  it  seems  that  posting  copies  in  public  places 
is  sufficient.52  But  publication  is  generally  directed  to  be  made 
in  a  newspaper  published  or  having  a  general  circulation  in  the 
municipality.  A  statute  requiring  "legal  notices  and  adver- 
tisements" to  be  published  in  newspapers  of  the  county  has  no 
application  to  city  ordinances.53 

§  133.  Designation  of  paper. — The  designation  of  the  paper 
must  be  by  the  proper  authority.  Thus,  where  a  town  is  given 
discretion  to  publish  the  ordinances  in  either  of  three  specified 

48  Schweitzer  v.  Liberty,  82  Mo.  14    N.    E.    451.      See,    also,    Sac- 

309.  ramento  v.  Dillman,  102  Cal.  107, 

«  Striker  v.  Kelly,  7  Hill  (N.  Y.)  36  Pac.  385. 

9;  Indianola  v.  Jones,  29  Iowa,  282;  si  Kimble  v.  Peoria,  140  111.  156, 

St.   Louis  v.   Foster,   52  Mo.   513 ;  29  N.  E.  723. 

Elmendorf  v.  Mayor,  etc.,  25  Wend.  52  Queen  v.  Justices,  4  Q.  B.  522, 

693.  29  Moak's  Eng.  Rep.  61. 

oo  Com.  v.  Davis,  140  Mass.  485 ;  "  Pittsburg  v.  Reynolds,  48  Kan. 

Com.  v.  McCafferty,  145  Mass.  384,  360,  29  Pac.  757. 


§  134]  FORM   AND  ENACTMENT  OF  ORDINANCES.  139 

classes  of  papers,  a  publication  made  in  a  paper  belonging  to  one 
of  the  classes  by  order  of  the  town  clerk  is  ineffectual.54  But 
where  the  council  neglects  to  designate  a  paper  and  the  law  re- 
quires the  clerk  of  the  board  of  aldermen  to  publish  resolutions 
and  ordinances  of  the  kind  in  question,  the  clerk  may  make  a  legal 
publication  in  any  paper  published  in  the  city.55 

§  134.  Location  of  paper — ' '  Printed  and  published  in  the 
city." — A  paper  is  printed  and  published  in  the  city  if  it  is 
there  composed,  set  up,  and  placed  in  forms,  although  the  press- 
work  is  done  elsewhere.56  A  statute  which  requires  publication 
in  a  newspaper  of  the  town  for  a  specified  period  is  complied  with 
by  publication  in  a  paper  prepared  and  edited  expressly  for  pub- 
lication in  the  town  and  having  its  principal  circulation  there, 
although  it  is  printed  elsewhere  and  sent  to  the  town  in  bundles 
for  distribution.57  But  there  can  be  no  valid  "publication"  in 
a  paper  which  has  no  circulation  in  a  town  although  it  is  entirely 
printed  there.58 

§  135.  Manner  and  sufficiency. — It  is  not  necessary  to  pub- 
lish along  with  the  ordinance  the  law  which  is  the  authority 
for  its  enactment.59  The  publication  may  be  in  connection  with 
the  other  proceedings  of  the  council.60  The  distribution  of 
printed  copies  of  an  ordinance  along  with  a  newspaper  is  a 
compliance  with  a  statute  requiring  publication  in  the  paper.61 
Inaccuracies  in  printing  are  immaterial  if  the  meaning  is  clear 
from  the  context.62 

§  136.  Distinction  between  publication  and  notice. — There 
is  a  manifest  distinction  to  be  observed  between  the  publica- 
tion of  a  notice  and  the  publication  of  an  instrument,  a  statute 

5*  Higley  v.  Bunce,  10  Conn.  436,  paper,  a  leading  paper  in  a  large 

567.    See  Chicago  v.  McCoy,  136  111.  city  not  far  distant  which  circulates 

344, 11  L.  R.  A.  413.  in  the  municipality  may  be  resorted 

&5  In  re  Durkin,  10  Hun  (N.  Y.)  to  in  preference  to  the  local  paper 

269.  of  a  village  lying  nearer  in  point  of 

6«  Bayer  v.  Hoboken,  44  N.  J.  L.  fact    than    the   city.      Gallerno    v. 

131.  Rochester,  46  U.  C.  Q.  B.  279. 

5T  Tisdale  v.  Town  of  Minonk,  46  59  People  v.  Board  of  Supervisors, 

111.  9.  27  Cal.  655. 

SB  Haskell  v.  Bartlett,  34  Cal.  281.  «o  Law  v.  People,  87  111.  389. 

Where  publication  is  directed  to  be  ei  Ex  parte  Bedell,  20  Mo.  App. 

made  in  an  adjoining  municipality  125. 

in  the  absence  of  any  local  news-  02  Moss  v.  Oakland,  88  111.  109. 


140  PUBLIC   CORPORATIONS.  [§  137 

or  ordinance.  A  notice  requires  no  particular  collocation  of 
words  so  long  as  it  conveys  a  clear  idea  of  its  subject,  but 
a  statute  or  ordinance  has  no  legal  existence  except  in  the  lan- 
guage in  which  it  is  passed.63  Hence,  where  a  notice  is  by 
statute  required  to  be  published  in  a  paper  printed  in  the  Ger- 
man language,  the  notice  must  be  printed  in  the  German  lan- 
guage; but  when  a  statute  or  ordinance  is  required  to  be  pub- 
lished in  the  same  paper  it  must,  in  default  of  legislative 
direction  to  the  contrary,  be  printed  in  the  English  language.64 

§  137.  Time  and  period. — When  no  time  is  designated  pub- 
lication may  be  made  at  any  time.65  A  provision  for  publica- 
tion for  a  certain  time  before  taking  effect  requires  but  one 
insertion.66  A  requirement  of  publication  "for  five  successive 
days"  in  a  daily  newspaper  is  complied  with  by  publication  for 
five  successive  week  days,  although  a  Sunday  intervenes  on 
which  there  was  no  issue.67  The  day  of  issue  and  delivery  of 
the  paper  is  the  first  day  of  the  period  regardless  of  the  date 
of  the  paper. 

A  requirement  of  publication  "for  at  least  one  week"  in  a 
newspaper  published  in  the  city  is  complied  with  by  one  pub- 
lication if  the  paper  is  a  weekly  paper,  but  if  made  in  a  daily 
paper  it  must  appear  in  each  issue  for  one  week.68 

§  138.  Proof  of  publication. — It  is  commonly  provided  that 
proof  of  publication  may  be  made  by  the  certificate  of  the 


«3  State  v.  Mayor,  54  N.  J.  L.  Ill,  ee  Hoboken  v.  Gear,  27  N.  J.  L. 

22  Atl.  1004, 14  L.  R.  A.  62.  265 ;  State  v.  Hardy,  7  Neb.  377 ; 

e*  State  v.  Mayor,  supra.  Commonwealth    v.    Matthews,    122 

es  St.  Paul  v.  Colter,  12  Minn.  41,  Mass.  60. 

90  Am.  Dec.  278.    The  charter  pro-  ei  Ex  parte   Fisk,   72   Cal.   125 ; 

vided  that  "the  council  shall  cause  Taylor    v.    Palmer,    31    Cal.    240. 

all  publications  made  by  authority  When  the  publication  is  required  to 

of  the  city  to  be  inserted  in  the  be  in  the  official  paper  of  the  city  it 

first  column  of  the  third  page  of  the  is  'sufficient  if  it  is  published  as 

newspaper  doing  the  city  printing."  often  as  the  paper  is  issued.    Rich- 

The  ordinance  was  passed  May  4th,  ter  v.  Harper,  95  Mich.  221,  54  N. 

and  not  published  until  September  W.  768. 

9th  following,  between  which  dates  G8  Union  P.  R.  Co.  v.  Montgomery, 

several  meetings  of  the  council  had  49  Neb.  429,  68  N.  W.  619. 
taken  place. 


§  138]  FOEM   AND  ENACTMENT   OF  ORDINANCES.  141 

clerk  under  the  seal  of  the  corporation.  A  mere  memorandum 
entered  on  the  ordinance  is  insufficient  as  a  certificate.69  Where 
the  publication  must  be  in  a  paper  "published  in  the  city," 
there  must  be  proof  of  publication  and  of  the  place  of  publica- 
tion.70 

69  Thus,  in  Hutchison  v.  Mt.  Ver-  fact  and  date,  so  that  thereafter  a 

non,  40  111.  App.  19,  it  was  held  that  certificate  thereof  might  be  readily 

the  words  "published  July  17,  1890.  made  when  required." 

Attest,  B.  B.  Slade,"  was  "nothing  ™  Hutchison   v.   Mt.   Vernon,   40 

more  than  a  memorandum  of  the  111.  App.  19. 


CHAPTER  XIV. 


THE  VALIDITY  OF  ORDINANCES. 


§  139.  General  statement. 

140.  Ordinances  valid  in  part. 

141.  Nature  of  an  ordinance. 

142.  Injunctions  —  Invalid    ordi- 

nances. 

I.  GENERAL  PRINCIPLES  GOVERNING 

VALIDITY. 

143.  Must  conform  to  charter. 

144.  Must  be  constitutional. 

145.  Must  conform  to  law. 

146.  Must  not  contravene  common 

right. 

147.  Must  be  general  and  impar- 

tial. 

148.  Must  not  be  oppressive. 

149.  Must  be  reasonable. 

150.  Reasonableness    a    question 

for  the  court. 

151.  Presumption   of   reasonable- 

ness. 

II.  ILLUSTRATIONS   OF   VALID   AND 

INVALID  ORDINANCES. 

152.  Laying  pipes  in  streets. 

153.  Location  and  speed  of  vehi- 

cles. 


§  154.  Handling  of  trains. 

155.  Regulation    of    street    rail- 

ways. 

156.  Parades,   music,   and   speak- 

ing in  public  places. 

157.  Licenses. 

158.  Discrimination  against  non- 

residents. 

159.  Regulation  of  markets. 

160.  Regulation  of  liquor  traffic. 

161.  Fire  regulations. 

162.  Quarantine   regulations 

— Second-hand  clothing. 

163.  Hotel  runners  and  hackmen. 

164.  Miscellaneous  decisions. 

III.  ORDINANCES  WHICH  PROHIBIT 
ACTS  WITHOUT  THE  CONSENT 
OF  CERTAIN  OFFICIALS. 

165.  General  statement. 

166.  Cases   sustaining  such   ordi- 

nances. 

167.  Delegation  of  authority. 

168.  Nature  of  act  prohibited. 

169.  Uniform    conditions — Unjust 

discrimination. 


§139.  General  statement. — An  ordinance  may  be  void  be- 
cause of  want  of  power  in  the  corporation  to  enact  it,  the  fail- 
ure to  observe  prescribed  formalities  in  its  enactment,  or  be- 
cause contrary  to  certain  general  principles  of  law.  As  a  rule 
the  questions  arise  upon  the  validity  of  ordinances  enacted 
under  general  authority  to  legislate  with  reference  to  a  certain 
subject-matter.  Thus,  when  a  city  is  granted  the  power  to 
regulate  and  control  its  streets,  it  is  authorized  to  exercise  the 
general  power  by  means  of  ordinances  enacted  in  accordance 
with  the  provisions  of  the  charter  and  the  general  rules  of  law. 


142 


§  140]  VALIDITY  OF  ORDINANCES.  143 

§  140.  Ordinances  valid  in  part.— Certain  sections  or  parts 
of  sections  of  an  ordinance  may  be  held  invalid  without  affect- 
ing the  validity  of  what  remains,  if  the  parts  are  not  so  inter- 
blended  and  dependent  that  the  vice  of  one  necessarily  vitiates 
the  others.  It  is  only  necessary  "that  the  good  and  bad  parts 
be  so  distinct  and  independent  that  the  invalid  parts  may  be 
eliminated  and  that  what  remains  contain  all  the  essentials  of  a 
complete  ordinance. ' ' l  The  fact  that  the  penal  provision  for 
the  enforcement  of  an  ordinance  is  void  does  not  invalidate  its 
other  provisions,  the  valid  part  being  complete  and  independent 
of  the  void  portion.2  As  said  by  the  supreme  court  of  the 
United  States,  with  reference  to  statutes :  "These  are  cases  where 
the  parts  are  so  distinctly  separable  that  each  can  stand  alone, 
and  where  the  court  is  able  to  see  and  to  declare  that  the  inten- 
tion of  the  legislature  was  that  the  part  pronounced  valid  should 
be  enforceable,  even  though  the  other  part  should  fail.  To  hold 
otherwise  would  be  to  substitute  for  the  law  intended  by  the  legis- 
lature one  they  may  never  have  been  willing  by  itself  to  enact. ' '  3 

An  ordinance  may  be  valid  as  to  certain  persons  or  sales 
and  invalid  as  to  others.4  Thus,  an  ordinance  which  forbids  the 
sale  of  malt  liquors,  which  the  corporation  has  power  to  do, 
and  also  of  spirituous  liquors,  which  it  has  not  power  to  do,  is 
valid  as  to  the  former  and  invalid  as  to  the  latter.5  So,  where 
the  general  law  permits  the  sale  of  liquor  in  quantities  of  five 
gallons  or  more  without  a  license,  an  ordinance  which  prohibits 
all  sale  of  liquors  without  a  license  is  valid  as  to  sales  in  quan- 
tities of  less  than  five  gallons.6  But  when  the  remaining  part  of 
the  ordinance  does  not  express  the  legislative  intent,7  or  the 

1  In  re  Bizzell,  112  Ala.  210,  21  112  Cal.  412,  32  L.  R.  A.  527 ;  State 
So.     371 ;     City     of     Detroit     v.  v.  Hardy,  7  Neb.  377 ;  St.  Louis  v. 
Fort  Wayne,  etc.  R.  Co.,  95  Mich.  St.  Louis  Ry.  Co.,  89  Mo.  44 ;  Belle- 
456,    54   N.   W.   958,   35   Am.    St  ville  v.  Citizens'  Horse  Car  Co.,  152 
580,  20  L.  R.  A.  79 ;  Ex  parte  Steph-  111.  171,  26  L.  R.  A.  681 ;  Donners- 
en,  114  Cal.  278.  berger  v.  Prendergast,  128  111.  229 ; 

2  Magnean  v.  Fremont,  30  Neb.  Koch  v.  North  Ave.  R.  Co.,  75  Md. 
843,  9  L.  R.  A.  786.  222,  15  L.  R.  A.  377. 

3  Poindexter  v.  Greenhow,  114  U.        *  Ex  parte  Cowert,  92  Ala.  94,  9 
S.  270,  at  305 ;  State  v.  Webber,  107  So.  225. 

N.  C.  962,  22  Am.  St.  920 ;  In  re  G  Eldora  v.  Burlingame,  62  Iowa, 

Wong  Hane,  108  Cal.  680,  49  Am.  32 ;  Cantril  v.  Sainer,  59  Iowa,  26. 

St.     138 ;     City     of     Tarkio     v.  « State  v.  Priester,  43  Minn.  373. 

Cook,  120  Mo.  1,  25  S.  W.  202,  41  1  In  re  Wong  Hane,  108  Cal.  680, 

Am.     St.     678;     In     re     Haskell,  49  Am.  St.  138. 


144 


PUBLIC   CORPORATIONS. 


[§141 


objectionable  part  is  the  compensation  for  or  inducement  to  the 
unobjectionable  part,  so  that  it  is  apparent  that  the  latter  part 
would  not  have  been  enacted  alone,  the  whole  is  invalid.8 

§  141.  The  nature  of  an  ordinance. — A  municipal  ordinance 
is  a  local  law  prescribing  a  general  rule  of  action,  and  is  as 
binding  upon  the  people  within  the  municipality  as  are  the  acts 
of  the  legislature  upon  the  citizens  of  the  state.9  When  appli- 
cable to  every  part  of  the  city  it  is  a  general  law,  and  not  in 
conflict  with  a  constitutional  provision  prohibiting  local  legisla- 
tion.10 It  is  binding  upon  all  who  are  within  the  limits  of  the 
municipality;  u  and  any  person  who  contracts  with  reference  to 
a  matter  governed  by  an  ordinance  is  charged  with  notice  of  its 


a  Gilbert- Arnold  Land  Co.  v.  Su- 
perior, 91  Wis.  353,  64  N.  W.  999; 
Jacksonville  v.  Ledwith,  26  Fla.  163, 
23  Am.  St.  559,  and  note  to  City 
of  Tarkio  v.  Cook,  120  Mo.  1,  41 
Am.  St.  678,  683. 

» New  Orleans  Water  Works  v. 
New  Orleans,  164  TJ.  S.  471,  41  L. 
ed.  518;  Buffalo  v.  New  York,  etc. 
Ry.  Co.,  152  N.  Y.  276,  46  N.  E. 
496;  Citizens'  Gas  &  Min.  Co.  v. 
Elwood,  114  Ind.  332 ;  Bills  v.  Gosh- 
en,  117  Ind.  221,  3  L.  R.  A.  261. 
"Ordinances  are  not  merely  rules 
or  regulations  in  the  ordinary  sense 
of  those  terms ;  but,  as  the  deriva- 
tion of  the  word  would  indicate, 
they  are  in  the  nature  of  laws,  be- 
ing decreed  by  a  body  vested  with 
definite  legislative  authority  coupled 
with  the  power  to  enforce  obed- 
ience to  its  enactment."  Horr  & 
Bemis,  Mun.  Pol.  Ord.,  sec.  12 ;  Hop- 
kins v.  Mayor,  4  M.  &  W.  621,  640, 
per  Lord  Abinger;  Village  of  St. 
Johnsbury  v.  Thomson,  59  Vt.  300 ; 
State  v.  Tryon,  39  Conn.  183; 
Bearden  v.  Madison,  73  Ga.  184; 
Des  Moines  Gas  Co.  v.  Des  Moines, 
44  Iowa,  505,  at  508 ;  Starr  v.  Bur- 
lington, 45  Iowa,  87;  St.  Louis  v. 
Boffinger,  19  Mo.  13;  Jones  v.  In- 


surance Co.,  2  Daly  (N.  Y.)  307; 
McDermott  v.  Board,  5  Abb.  Pr. 
(N.  Y.)  422;  Gabel  v.  Houston,  29 
Tex.  335 ;  Burmeister  v.  Howard,  1 
Wash.  Terr.  207.  A  city  council 
"is  a  miniature  general  assembly, 
and  their  authorized  ordinances 
have  the  force  of  laws  passed  by 
the  legislature  of  the  State."  Scott, 
J.,  in  Taylor  v.  Carondelet,  22  Mo. 
105 ;  St.  Louis  v.  Foster,  52  Mo.  513. 
Contracts  between  the  inhabitants 
of  a  city  in  violation  of  the  provi- 
sions of  a  valid  ordinance  are  il- 
legal and  cannot  be  enforced. 
Milne  v.  Davidson,  5  Mart.  N.  S. 
(La.)  586.  But  see  Baker  v.  Port- 
land, 58  Me.  199,  10  Am.  L.  Reg. 
(N.  S.)  559,  note. 

10  Foster   v.   Police  Com'rs,   102 
Cal.  183,  41  Am.  St.  194. 

11  City  Ry.  Co.  v.  Mayor,  77  Ga. 
731,    4    Am.    St.    106.         In    Bott 
v.  Pratt,  33  Minn.  323,  the  court,  by 
Vanderberg.    J.,    said:      "An   ordi- 
nance which  a  municipal  corpora- 
tion is  authorized  to  make  is  as 
binding  on  all  persons  within  the 
corporate  limits  as  any  statute  or 
other  laws  of  the  commonwealth, 
and    all     persons     interested    are 
bound  to  take  notice  of  their  exist- 


§141] 


VALIDITY  OF   ORDINANCES. 


145 


provisions.12  But  police  ordinances,  although  their  violation 
may  be  punished  by  fine  and  imprisonment,  are  only  quasi- 
criminal  laws.13  They  are  not  criminal  laws  within  the  general 
meaning  of  the  term,  although  the  procedure  for  their  enforce- 
ment is  generally  criminal  in  form  and  may  be  in  the  name  of 
the  state.  Hence,  a  conviction  under  an  ordinance  for  keeping 
a  house  of  ill-fame  is  not  a  bar  to  a  conviction  for  the  same 
offense  under  the  general  law  of  the  state.14  The  violation  of 
one  ordinance  is  not  properly  a  crime  against  public  law.15 
Hence  a  defendant  when  prosecuted  under  an  ordinance  is  not 
entitled  to  a  jury  trial.16  But  the  courts  are  not  always  con- 
sistent, at  least  in  the  use  of  language.  Thus,  it  was  said17  of 
ordinances:  "They  come  strictly  within  the  definition  of 
'crimes  or  criminal  offenses.'  The  terms  'crime,'  'offense'  and 
'criminal  offense'  are  all  synonymous,  and  ordinarily  used  inter- 
changeably, and  include  any  breach  of  law  established  for  the 
protection  of  the  public,  as  distinguished  from  an  infringement 
of  mere  private  rights,  for  which  a  penalty  is  imposed  or  punish- 
ment inflicted  in  any  judicial  proceeding."  But  the  same  court 
held  18  that  a  city  council  might  lawfully  enact  an  ordinance 


ence.  Heland  v.  Lowell,  3  Allen 
(Mass.),  407;  Vandlnes'  Case,  6 
Pick.  187 ;  Gilmore  v.  Holt,  4  Pick. 
257;  Johnson  v.  Simonton,  43  Cal. 
242,  249."  Compare  Heeney  v. 
Sprague,  11  R.  I.  456,  23  Am.  Rep. 
502. 

12  North  Birmingham  Ry.  Co.  v. 
Calderwood,  89  Ala.  247, 18  Am.  St. 
Rep.  105 ;  Sylvester  Coal  Co.  v.  St. 
Louis,  130  Mo.  323,  32  S.  W.  Rep. 
649.  In  Ewing  v.  Webster  City,  103 
Iowa,  226,  72  N.  W.  511,  the 
court  said:  "It  is  the  established 
rule  of  this  state  that,  for  most  pur- 
poses at  least,  the  violation  of  a 
municipal  ordinance  enacted  by  au- 
thority of  the  state  is  a  crime,  and 
that  proceedings  for  its  punish- 
ment are  criminal." 

is  State  v.  Webber,  107  N.  C.  962, 
22    Am.     St.    920;     State    v.    Bo- 
neil,  42  La.  Ann.  1110,  21  Am.  St. 
413,  10  L.  R.  A.  60. 
10 


i*  State  v.  Lee,  29  Minn.  445,  13 
N.  W.  913;  State  v.  Harris,  50 
Minn.  128 ;  Wragg  v.  Penn.  Tp.,  94 
111.  11,  at  23 ;  Shafer  v.  Mumma,  17 
Md.  331;  Brownville  v.  Cook,  4 
Neb.  101.  See  an  extensive  note  to 
State  v.  Robitshek,  in  33  L.  R.  A. 
33. 

™Ex  parte  Hollwedell,  74  Mo. 
395,  at  401;  Platteville  v.  McKer- 
nan,  54  Wis.  487 ;  City  of  Goshen  v. 
Croxton,  34  Ind.  239. 

leByers  v.  Conn.,  42  Pa.  St.  89; 
Howe  v.  Plainfleld,  37  N.  J.  L.  145, 
at  151 ;  Mankato  v.  Arnold,  36  Minn. 
62,  30  N.  W.  505 ;  Contra,  State  v. 
West,  42  Minn.  147,  43  N.  W.  845 ; 
State  v.  Harris,  50  Minn.  128,  52 
N.  W.  387. 

IT  State  v.  West,  42  Minn.  147. 

is  State  v.  Robitshek,  60  Minn. 
123,  61  N.  W.  1023,  33  L.  R.  A. 
33,  annotated.  The  court  said: 
"Prosecutions  thereunder  are  in  the 


146  PUBLIC   CORPORATIONS.  [§  142 

which  in  effect  prohibited  any  one  not  a  policeman  from  institut- 
ing a  prosecution  for  failing  to  keep  a  saloon  closed  on  Sunday, 
on  the  ground  that  "municipal  ordinances  are  not  criminal 
statutes;  that  violations  thereof  are  not  crimes,  nor  are  such 
violations  governed  by  the  rules  of  the  criminal  law,  save  in 
certain  specified  exceptional  particulars." 

§142.  Injunctions — Invalid  ordinances. — The  passage  of 
an  ordinance  is  a  legislative  act,  and  it  is  well  settled  that  the 
legislative  acts  of  a  municipal  corporation  will  not  be  restrained 
by  injunction.19  But  when  an  ordinance  is  invalid  and  the  case 
falls  within  any  of  the  common  heads  of  equity,  a  court  will  enjoin 
the  enforcement  of  the  ordinance  in  order  to  protect  private 
rights.20  Ordinances  are  penal  in  their  nature,  and  the  validity 
of  criminal  laws  will  not  be  tested  by  injunction;  but  this  rule 
is  "subordinate  to  the  general  principle  that  equity  will  grant 
relief  where  there  is  not  a  plain,  adequate  and  complete  remedy 
at  law,  and  when  it  is  necessary  to  prevent  an  irreparable  in- 
jury."21 Thus,  an  injunction  was  granted  to  restrain  the  en- 
forcement of  an  invalid  ordinance  which  imposed  certain  restric- 
tions upon  articles  of  merchandise  and  subjected  the  seller  to 
an  action  for  a  violation  of  the  ordinance.22  But  where  the  plain- 
tiff had  been  twice  convicted  and  fined  for  violating  an  ordinance 
requiring  grain  to  be  weighed  on  city  scales  and  had  appealed, 
and  pending  the  appeal  brought  a  suit  to  restrain  the  city  from 
further  prosecuting  him  or  any  of  his  customers  on  the  ground 
that  the  ordinance  was  void,  the  injunction  was  denied  on  the 
ground  that  the  plaintiff  could  avoid  a  multiplicity  of  suits  by 
obeying  the  ordinance  pending  the  appeal,  and  that  the  loss  and 

name  of  the  state  by  express  pro-  was   prescribed   for   a   violation." 

vision  of  the  charter,  as  a  matter  i»  New  Orleans  Water  Works  v. 

of  convenience ;   and  they  are,  at  New  Orleans,  164  U.  S.  471 ;  Des 

most,     merely     gwasi-criminal     in  Moines  Gas  Co.  v.  Des  Moines,  44 

form.    They  are  simply  local  police  Iowa,  505 ;  High,  Inj.,  §  1246. 

regulations  or  by-laws  for  the  gov-  2°  New  Orleans  Water  Works  v. 

ernment  of  the  municipality,  and  New  Orleans,  164  U.  S.  471 ;  Balti- 

have  no  reference  to  or  connection  more  v.  Radecke,  49  Md.  217. 

with    the    administration    of    the  21  Austin     v.     Austin     Cemetery 

criminal  laws  of  the  state.    Origin-  Ass'n,  87  Tex.  330.    See  Vegelahn  v. 

ally  the  only  method  of  enforcing  Guntner,  167  Mass.  92. 

them  was  by  civil  action,  brought  22  Sylvester  Coal  Co.  v.  St.  Louis, 

by    the    municipality    in    its    own  130  Mo.  323,  51  Am.  St.  556. 
name  to  recover  such  penalty  as 


§  143]  VALIDITY  OF  ORDINANCES.  147 

convenience  which  he  would  thereby  suffer  would  not  be  so  great 
as  to  warrent  the  interference  of  a  court  of  equity.23 

The  general  principle  has  been  announced  that  a  municipal 
corporation  will  be  enjoined  from  performing  a  threatened  act 
which  constitutes  a  manifest  abuse  of  its  discretion,  to  the  op- 
pression of  the  citizens.24 

I.  GENERAL  PRINCIPLES  GOVERNING  VALIDITY. 

§  143.  Must  conform  to  charter. — As  all  ordinances  are  en- 
acted for  the  purpose  of  carrying  into  effect  powers  granted  by 
the  charter,  it  necessarily  follows  that  they  must  in  all  things 
conform  to  the  charter.25 

§  144.  Must  not  contravene  the  constitution. — Municipal  or- 
dinances are  subject  to  the  restrictions  imposed  by  the  constitu- 
tion of  the  state  and  of  the  United  States,  and  when  repugnant 
to  either  are  void.26  Thus,  an  ordinance  impairing  the  obligation 
of  a  contract,27  or  taking  property  without  due  process  of  law,28 
or  making  unjust  discriminations  between  citizens,  in  violation  of 
the  fourteenth  amendment  to  the  constitution,29  or  attempting 
to  regulate  interstate  commerce,  is  void.30  It  seems  that  a  per- 
son has  a  constitutional  right  to  associate  with  criminals,  and 
an  ordinance  forbidding  any  one  knowingly  to  associate  with 
persons  having  the  reputation  of  criminals  is  an  invasion  of  the 


v.    Webster    City,    103  31     Am.     St.     223;     Phillips     v. 

Iowa,  226,  72  N.  W.  511.  Denver,  19  Colo.  179,  41  Am.   St. 

2*  Atlanta  v.  Holliday,  96  Ga.  546,  Rep.  230 ;  Mt.  Pleasant  v.  Vansice, 

26  S.  E.  509.  43  Mich.  361 ;  Baldwin  v.  Smith,  82 

25  People  v.  Armstrong,  73  Mich.  III.  162 ;  Illinois  Central  R.  R.  Co. 
288,  41  N.  W.  375,  2  L.  R.  A.  721,  v.  Bloomington,  76  111.  447;  Vance 
16    Am.     St.    578 ;     Thompson    v.  v.  Little  Rock,  30  Ark.  435 ;  Judson 
Carroll,  22  How.  (U.  S.)  422,  16  L.  v.  Reardon,  16  Minn.  435. 

ed.  387 ;  Thomas  v.  Richmond,  12  27  Savings    Society    v.    Philadel- 

Wall.  (U.  S.)  349;  Com.  v.  Roy,  140  phia,  31  Pa.  St.  175,  72  Am.  Dec. 

Mass.  432;  Garden  City  v.  Abbott,  730;  Kansas  City  v.  Corrigan,  86 

34  Kan.  283,  8  Pac.  473;  State  v.  Mo.  67. 

Nashville,  15  Lea   (Tenn.),  697,  54  28  Baldwin  v.  Smith,  82  111.  162. 

Am.  Rep.  427 ;  State  v.  Municipal  29  state  v.  Dering,  84  Wis.  585, 

Court,  32  Minn.  329 ;  Rothschild  v.  36  Am.  St.  948. 

Darien,  69  Ga.  503 ;  State  v.  Belvi-  so  Moran  v.  New  Orleans,  112  U. 

dere,  44  N,  J.  L.  350.  S.  69. 

26  EX  parte  Felchlin,  96  Cal.  360, 


148 


PUBLIC   CORPORATIONS. 


[§145 


constitutional  right  of  personal  liberty.31  An  ordinance  which 
authorizes  a  fire  warden  to  arrest  and  detain  any  person  who, 
at  a  fire,  without  sufficient  excuse  refuses  to  obey  his  orders  is 
unconstitutional  as  depriving  the  person  of  his  liberty  without 
due  process  of  law.32  An  ordinance  discriminating  against  the 
Chinese  in  granting  laundry  licenses  is  void  as  contravening  the 
fourteenth  amendment.33 

§  145.  Must  conform  to  law. — Ordinances  must  not  only  con- 
form to  the  charter  and  the  constitution,  but  when  enacted  in 
pursuance  of  implied  power  they  must  be  consistent  with  the 
general  laws  and  policy  of  the  state.34  If  contrary  to  the  gen- 
eral laws  or  declared  policy  of  the  state  they  are  void.35 


si  Ex  parte  Smith,  135  Mo.  223, 
33  L.  R.  A.  606. 

32  Judson  v.  Reardon,  16  Minn. 
431  (Gil.  387). 

as  Tick  Wo  v.  Hopkins,  118  TJ.  S. 
356;  In  re  Tie  Loy,  26  Fed. 
611.  See,  also,  Soon  King  v.  Crow- 
ley,  113  U.  S.  703 ;  Barbier  v.  Con- 
nolly, 113  U.  S.  27.  An  ordinance 
declaring  steamboats  emitting  dense 
smoke  a  nuisance  is  valid  as  affect- 
ing boats  on  the  Chicago  river. 
Harmon  v.  Chicago,  110  111.  400.  A 
penalty  for  violating  an  ordinance 
is  not  a  debt  within  the  meaning  of 
the  constitutional  provision  prohib- 
iting imprisonment  for  debt.  Har- 
denbrock  v.  Town  of  Ligonier,  95 
Ind.  70. 

s*  Burg  v.  Chicago,  etc.  Ry.  Co., 
90  Iowa,  106,  48  Am.  St.  Rep.  419 ; 
Katzenberger  v.  Laws,  90  Tenn.  235, 
16  S.  W.  611,  13  L.  R.  A.  185,  25 
Am.  St.  681.  See  note  to  this 
case  in  13  L.  R.  A.  185.  Volk  v. 
Newark,  47  N.  J.  L.  117 ;  Lozier  v. 
Newark,  48  N.  J.  L.  452 ;  Robinson 
v.  Mayor  of  Franklyn,  1  Humph. 
(Tenn.)  156;  Mays  v.  Cincinnati,  1 
Ohio  St.  268;  Canton  v.  Nist,  9 
Ohio  St.  439,  34  Am.  Dec.  625 ;  Carr 
v.  St.  Louis,  9  Mo.  191 ;  Du  Bois  v. 
Augusta,  Dudley  (Ga.),  30;  Adams 


v.  Mayor,  etc.,  29  Ga.  56 ;  Southport 
v.  Ogden,  23  Conn.  128;  Wirth  v. 
Wilmington,  68  N.  C.  24;  State  v. 
Austin,  114  N.  C.  855,  41  Am. 
St.  817;  Wood  v.  Brooklyn,  14 
Barb.  (N.  Y.)  425.  In  Flood  v. 
State,  19  Tex.  App.  584,  it  is  said : 
"An  ordinance,  to  be  valid,  unless 
such  legislative  authority  be  given 
for  its  enactment,  must  not  conflict 
with  the  statute,  but  must  conform 
to  the  laws  of  the  state."  An  ordi- 
nance which  prohibits  traffic  in  in- 
toxicating liquors  is  not  an  illegal 
interference  with  business.  Fan- 
ner v.  Alliance,  29  Fed.  169; 
Markle  v.  Akron,  14  Ohio,  586.  An 
ordinance  enacted  under  the  police 
power,  prescribing  a  penalty  for  the 
non-observance  of  Sunday  in  the 
conduct  of  certain  business,  is  not 
repugnant  to  the  state  law  because 
it  exempts  from  its  operation  cer- 
tain occupations  not  exempted  by 
the  state  law.  Thiesen  v.  McDavid, 
34  Fla.  440,  26  L.  R.  A.  234.  The 
king  cannot  authorize  the  making 
of  a  by-law  contrary  to  the  law  of 
the  realm.  Chief  Justice  Hobart, 
in  Norris  v.  Staps  (1617) ,  Hob.  210. 
ss  See  Walker  v.  City  of  Aurora, 
140  111.  402,  29  N.  E.  741. 


§  145]  VALIDITY   OF   ORDINANCES.  149 

A  grant  of  power  to  a  municipal  corporation  to  make  by- 
laws for  its  own  government  and  the  regulation  of  its  own 
police  "cannot  be  construed  as  imparting  to  it  power  to  repeal 
the  laws  in  force  or  to  supersede  their  operation  by  any  of  its 
ordinances.  Such  a  power,  if  not  expressly  conferred,  cannot 
arise  by  mere  implication  unless  the  exercise  of  the  power  given 
be  inconsistent  with  the  previous  law  and  does  necessarily  op- 
erate as  its  repeal  pro  tanto.  Nor  can  the  assumption  be  indulged 
that  the  legislature  intended  that  an  ordinance  passed  by  the  city 
should  be  superior  to  or  take  the  place  of  the  general  law  of  the 
state  upon  the  same  subject."  36 

A  general  law  does  not  repeal  an  existing  special  law  unless 
such  clearly  appears  to  have  been  the  legislative  intention.  Thus, 
a  grant  of  power  to  provide  for  the  punishment  of  a  designated 
offense,  contained  in  a  city  charter,  is  not  repealed  by  a  subse- 
quently enacted  general  statute  providing  for  the  prosecution 
of  the  same  offense  throughout  the  state.37  But  the  powers 
granted  must  be  exercised  in  conformity  to  the  general  criminal 
laws.  Thus,  under  authority  to  prohibit  variety  shows,  a  city 
cannot  group  together  a  certain  number  of  acts  in  themselves 
lawful,  and  by  calling  the  result  a  variety  show  prohibit  the 
performance.38 

When  an  ordinance  is  specifically  authorized  by  the  charter 
it  has  the  effect  of  a  special  law  of  the  legislature  within  the 
limits  of  the  municipality,  and  supersedes  the  general  law.  It 
operates  to  repeal  the  general  law  on  the  principle  that  pro- 
visions of  different  statutes  which  are  in  conflict  with  one  an- 
other cannot  stand  together;  and  in  the  absence  of  anything 
showing  a  different  intent  on  the  part  of  the  legislature,  gen- 


36  March    v.    Com.,   12   B.    Mon.  although  inconsistent  with  it.    An 
(Ky.)  25,  Simpson,  C.  J.    See  Sut-  act  of  the  legislature  making  the 
ton's    Hospital    Case,    10   Reports,  offense  of  keeping  a  house  of  ill- 
31a ;  Rex  v.  Maidston,  3  Burr.  1837.  fame  a  felony  and  punishable  as 

37  State  v.  Labatate,  39  La.  Ann.  such  was  held  not  to  repeal  by  im- 
513,     2     So.     550 ;      Covington     v.  plication  a  provision  of  the  charter 
St.    Louis,    78    111.    548.      Contra,  of  Detroit  authorizing  the  common 
Southport  v.  Ogden,  23  Conn.  128.  council    to   prohibit,   prevent   and 
In  People  v.  Hanrahan,  75  Mich,  suppress  the  keeping  of  such  houses 
611,  42  N.  W.  1124,  it  was  held  that  and  ordinances  enacted  thereunder. 
a  subsequent  general  law  did  not,  ss  Ex  parte  Bell,  32  Tex.  Cr.  Rep. 
by  implication,  work  the  repeal  of  308,  42  Am.  St.  778. 

a  special  law  on  the  same  subject 


150  VALIDITY   OP   ORDINANCES.  [§  146 

eral  legislation  upon  a  particular  subject  is  repealed  by  subse- 
quent special  legislation  upon  the  same  subject.39 

§  146.  Must  not  contravene  common  right. — It  is  said  that 
there  can  be  no  implied  power  to  enact  an  ordinance  which 
contravenes  common  right.  It  is  somewhat  difficult  to  deter- 
mine what  is  meant  by  a  common  right,  and  no  clear  defini- 
tion is  found  in  the  cases.40  The  rule  has  often  been  used  merely 
as  a  makeweight  in  decisions  which  should  have  been  put  flatly 
on  other  grounds.  Its  true  meaning  seems  to  be  that  the  general 
power  of  a  municipal  corporation  to  pass  local  police  ordinances 
concerning  the  exercise  of  'a  property  or  a  public  right  by  a  citizen 
extends  only  to  the  making  of  reasonable  regulations,  and  does 
not  extend  to  the  prohibiting  or  destroying  the  exercise  of  the 
right  altogether.41 

§  147.  Must  be  general  and  impartial. — Ordinances  should 
be  general  in  their  nature  and  impartial  in  their  operation. 
Unwarranted  discrimination  or  oppressive  interference  in  par- 
ticular instances  will  render  an  ordinance  invalid.42  An  ordi- 
nance prohibiting  a  specified  railroad  corporation  from  running 
locomotives  by  steam  on  a  certain  street  does  not  contravene 
this  principle,  when  no  other  person  or  corporation  has  the 
right  to  run  locomotives  on  that  street.  Hence,  said  the  court, 
"no  other  person  or  corporation  is  or  can  be  in  a  like  situation, 
except  with  the  consent  of  the  city.  On  this  account  the  ordi- 
nance, while  apparently  limited  in  its  operation,  is  in  effect  gen- 

39  St.  Johnsbury  v.  Thompson,  59  Am.  St.  580,  20  L.  R.  A.  79 ;  Phillips 
Vt.  300 ;  In  re  Snell,  58  Vt.  207 ;  v.  Denver,  19  Colo.  179,  41  Am.  St. 
State  v.  Clark,  54  Mo.  17 ;  Mark  v.  230 ;     Lindall     v.     Covington,     90 
State,  97  N.  Y.  572 ;  State  v.  Morris-  Ky.   444,   29  Am.    St.   398 ;   In  re 
town,  33  N.  J.  L.  57.  Flaherty,  105  Cal.  558,  27  L.  R.  A. 

40  The  principle  of  the  above  sec-  529 ;  Ex  parte  Chin  Yan,  60  Cal.  78 ; 
tion  is  recognized  in  Anderson  v.  Zanone  v.  Mound  City,  103  111.  552 ; 
City  of  Wellington,  40  Kan.  173,  2  Ingaman  v.   Chicago,   78  111.  405; 
L.  R.  A.  110,  10  Am.   St.  175;  In  Champer  v.  Greencastle,   138  Ind. 
re  Flaherty,  105  Cal.  558,  27  L.  R.  339,    46    Am.    St.    390.      That    an 
A.  529 ;  Hayden  v.  Noyes,  5  Conn,  ordinance  manifestly  intended  as  a 
391 ;    City    Council    v.    Ahrens,    4  sanitary  regulation  is  made  to  ap- 
Strob.  (S.  C.)  L.  241.  ply  only  to  a  part  of  the  city  does 

41  See  1  Dillon,  Mun.  Corp.  (4th  not  render  it  invalid,  if  that  part  is 
ed.)   §325  and  cases  cited.  so  situated  as  to  require  particular 

42  Detroit  v.  Ft.  Wayne,  etc.  Ry.  and  exceptional  provisions.     Com. 
Co.,  95  Mich.  456,  54  N.  W.  958,  35  v.  Patch,  97  Mass.  221. 


§  148]  VALIDITY  OP  ORDINANCES.  ,  151 

eral,  as  it  applies  to  all  who  can  do  what  is  prohibited."  43  An 
ordinance  containing  a  grant  may  reserve  the  right  to  impose 
restrictions  not  imposed  upon  other  persons  or  corporations.  Such 
ordinances  are  necessarily  several  and  independent  of  each  other, 
and  the  conditions  imposed  and  requirements  exacted  are  neces- 
sarily different,  as  the  conditions  and  circumstances  vary.44 

§  148.  Must  not  be  oppressive. — An  ordinance  which  is  un- 
just and  oppressive  in  its  character  and  operation  is  invalid.45 
Thus,  an  ordinance  which  compelled  the  substitution  of  a  cement 
sidewalk  in  the  place  of  a  plank  walk  in  front  of  a  twenty-acre 
vacant  lot,  the  plank  walk  having  been  laid  only  six  months  before 
in  conformity  with  an  ordinance,  and  being  still  safe,  sufficient 
and  in  good  condition,  was  held  void,  because  unreasonable,  un- 
just and  oppressive.46 

§  149.  Must  be  reasonable. — Probably  the  most  important 
general  rule  affecting  ordinances  enacted  under  some  authority 
in  general  terms  is  that  which  makes  them  invalid  if  wholly  un- 
reasonable.47 When  an  ordinance  is  passed  under  specific  statu- 
tory authority,  which  authorizes  the  ordinance  in  the  terms  in 
which  it  is  made,  the  question  of  its  reasonableness  cannot  be 
raised.48  In  all  other  cases  an  unreasonable  ordinance  is  invalid, 

« Railway  Co.  v.  Richmond,  96  563;  Palmer  v.  Danville,  158  111. 
U.  S.  521.  156;  Bloomington  v.  Latham,  142 

44  Detroit  v.  Ft.  W.,  etc.  Ry.  Co.,     111.  462,  18  L.  R.  A.  487. 

95  Mich.  456,  20  L.  R.  A.  79.  An  47  Johnson  v.  Mayor  of  Croydon 
ordinance  which  prohibits  certain  (1886),  16  Q.  B.  D.  708,  7  Eng.  Rul. 
occupations  on  Sunday  is  valid,  Cas.  278,  and  many  early  cases 
although  it  excludes  certain  other  cited  in  the  English  and  American 
occupations  from  its  operation,  notes.  Many  cases  are  also  col- 
See  Theisen  v.  McDaniel,  34  Fla.  lected  in  a  note  to  35  Am.  Rep.  702. 
440,  26  L.  R.  A.  234.  «  Phillips  v.  Denver,  19  Colo.  179, 

45  Mayor    v.    Beasly,    1    Humph.  34  Pac.  902,  41  Am.  St.  Rep.  230; 
(Tenn.)  232;  Mayor  v.  Winfield,  8  Champer  v.   Greencastle,   138   Ind. 
Humph.   (Tenn.)  707;  St.  Louis  v.  339,  35  N.  E.  14,  24  L.  R.  A.  768, 
Weber,  44  Mo.   547 ;   Baltimore  v.  46  Am.  St.  Rep.  390.    In  Beiling  v. 
Radecke,  49  Md.  217 ;  St.  Louis  v.  Evansville,  144  Ind.  644,  35  L.  R.  A. 
Fitz,  53  Mo.  582 ;  Commissioners  v.  272,   the  court  said :     "It  is  well 
Gas  Co.,  12  Pa.  St.  318.  settled  that  when  the  adoption  of  a 

46  Hawes  v.  Chicago,  158  111.  653,  municipal   ordinance  or  by-law  is 
30  L.  R.  A.  225.    For  applications  expressly  authorized  by  the  legis- 
of  the  same  principle,  see  Davis  v.  lature,  and  when  the  express  grant 
Litchfield,  145  111.  313,  21  L.  R.  A.  of  power  is  not  in  conflict  with  a 


152 


PUBLIC   CORPORATIONS. 


[§150 


and  the  question  of  reasonableness  must  be  determined  in  the 
light  of  the  particular  circumstances.  An  ordinance  may  be 
reasonable  and  valid  as  to  one  state  of  facts  and  circumstances, 
and  unreasonable  and  invalid  when  applied  to  facts  and  circum- 
stances of  a  different  character.49 

§  150.  Reasonableness  a  question  for  the  court. — The  ques- 
tion of  the  reasonableness  of  an  ordinance  must  be  decided  by 
the  court  with  due  regard  to  all  existing  circumstances  and  con- 
ditions, the  object  sought  to  be  attained,  and  the  necessity  for 
the  adoption  of  the  ordinance.50  It  may  be  determined  by  an 
inspection  of  the  ordinance  or  after  hearing  evidence.  But  such 
evidence  must  be  directed  to  the  court  and  not  to  the  jury.51 


constitutional  prohibition  or  fun- 
damental principles,  it  cannot  be 
successfully  assailed  as  unreason- 
able in  a  judicial  tribunal." 

Coal  Float  v.  Jeffersonville,  112 
Ind.  15, 13  N.  E.  115 ;  Ex  parte  Chin 
Yan,  60  Cal.  78;  Haynes  v.  Cape 
May,  50  N.  J.  L.  55,  13  Atl.  231. 
"Where  an  ordinance  is  based  upon 
a  general  power,  and  its  provisions 
are  more  specific  and  detailed  than 
the  expression  of  the  power  con- 
ferred, the  court  will  look  into  the 
reasonableness  of  such  provisions." 
State  v.  Trenton,  53  N.  J.  L.  132, 
20  Atl.  1076.  And  see  Hawes 
v.  Chicago,  158  111.  653,  30  L.  R.  A. 
225,  and  Darlington  v.  Ward,  48 
S.  C.  570,  26  S.  E.  906,  38  L.  R.  A. 
326. 

49  State  v.  Sheppard,  64  Minn. 
287,  36  L.  R.  A.  305. 

so  Hawes  v.  Chicago,  158  111.  653, 
42  N.  E.  373,  30  L.  R.  A.  225 ;  Lake 
View  v.  Tate,  130  111.  247,  22  N.  E. 
791,  6  L.  R.  A.  268;  Kip  v.  Pater- 
son,  26  N.  J.  L.  298 ;  State  v.  East 
Orange,  41  N.  J.  L.  127;  State  v. 
Orange,  50  N.  J.  L.  389,  13  Atl. 
240;  Ex  parte  Frank,  52  Cal.  606; 
Kneedler  v.  Norristown,  100  Pa.  St. 
368 ;  Com.  v.  Worcester,  3  Pick.  462 ; 
Neier  v.  Missouri  Pac.  Ry.  Co.,  12 


Mo.  App.  25;  St.  Louis  v.  Weber, 
44  Mo.  547. 

ei  State  v.  Trenton,  53  N.  J.  L. 
132,  20  Atl.  1076.  In  Evison  v. 
C.,  M.  &  St.  P.  Ry.  Co.,  45  Minn. 
370,  Mr.  Justice  Mitchell  said :  "An 
ordinance  is  in  the  nature  of  a  local 
statute,  and  it  would  seem  anoma- 
lous to  leave  it  to  the  jury  to  deter- 
mine whether  a  law  is  valid.  Cer- 
tainly, if  the  invalidity  is  apparent 
on  the  face  of  the  statute  or  ordi- 
nance, it  has  always  been  held  a 
question  of  law  for  the  court,  and 
we  cannot  perceive  why  a  rule 
should  be  different  where  the  inva- 
lidity is  made  to  appear  from  ex- 
trinsic facts.  Any  other  rule  would 
lead  to  the  embarrassing  result  that, 
upon  the  same  state  of  facts,  one 
jury  might  hold  an  ordinance  valid 
and  another  jury  hold  it  invalid." 
In  Clason  v.  Milwaukee,  80  Wis. 
316,  and  Austin  v.  Austin  Cemetery 
Ass'n,  87  Tex.  330,  28  S.  W.  528,  47 
Am.  St.  Rep.  114,  it  was  held  that 
where  the  question  of  reasonable- 
ness depended  upon  the  existence  of 
certain  facts  of  which  the  court 
had  not  judicial  knowledge,  such 
facts  might  be  submitted  to  the 
jury.  But  in  Mercer  County  v. 
Fleming,  111  Cal.  46,  it  was  said 


§  151]  VALIDITY   OF   ORDINANCES.  153 

§  151.  Presumption  of  reasonableness. — The  presumption  is 
in  favor  of  the  reasonableness  of  the  ordinance.52  The  party 
asserting  its  illegality  must  set  forth  the  facts  in  his  pleading 
and  sustain  the  burden  of  proof.53  It  requires  a  clear  and  strong 
case  to  justify  the  court  in  holding  an  ordinance  invalid  when 
the  corporation  is  acting  within  the  apparent  scope  of  its  au- 
thority. As  said  in  a  recent  case,  ' '  The  judicial  power  to  declare 
it  void  can  only  be  exercised  when  from  the  inherent  character 
of  the  ordinance,  or  from  evidence  taken  showing  its  operation, 
it  is  demonstrated  to  be  unreasonable." 54 

In  assuming  the  right  to  judge  of  the  reasonableness  of  an 
exercise  of  corporate  power,  courts  will  not  look  closely  into  mere 
matters  of  judgment  where  there  may  be  a  reasonable  difference 
of  opinion.  It  is  not  to  be  expected  that  every  power  will  be 
exercised  with  the  highest  discretion,  and,  when  it  is  plainly 
granted,  a  clear  case  should  be  made  to  authorize  an  interference 
on  the  ground  of  unreasonableness.55  "This,  we  think,  is  the 
true  rule,"  said  Crockett,  J.,  "and  it  proceeds  upon  the  theory 
that,  under  a  general  grant  of  power  to  a  municipal  corporation 
to  pass  ordinances  on  a  given  subject,  it  will  be  presumed  that 
it  was  not  intended  to  clothe  it  with  power  to  pass  an  ordinance 
which  is  clearly  unreasonable,  unjust,  oppressive,  partial  and 
unfair;  or  which  contravenes  public  policy  or  is  in  restraint  of 
trade.  But  an  ordinance  will  not  be  presumed  invalid  on  either 
of  these  grounds  unless  in  a  plain  case." 56 

that  the  question  must  be  deter-  Dock,  etc.  Ry.  Co.,  133  N.  Y.  104, 
mined  from  an  inspection  of  the  28  Am.  St.  609;  White  v.  Kent, 
ordinance,  and  that  evidence  could  11  Ohio  St.  550;  Com.  v.  Patch,  97 
not  be  received  to  show  the  man-  Mass.  221 ;  Van  Hook  v.  Selma,  70 
ner  in  which  it  was  or  might  be  en-  Ala.  361.  Contemporaneous  con- 
forced.  See,  also,  State  v.  Four-  struction  cannot  be  considered  when 
cade,  45  La.  Ann.  717,  40  Am.  St.  the  meaning  is  clear  from  the  lan- 
249.  guage  of  the  act.  Wesson  v.  Col- 

52  Mayor  v.  Dry  Dock  R.  Co.,  133  lins,    72    Miss.    844,    18    So.    360, 

N.  Y.  104;  People  v.  Creiger,  138  917. 

111.  401,  28  N.  E.  812.  65  St.  Louis  v.  Weber,  44  Mo.  547 ; 

63  State  v.  Fourcade,  45  La.  Ann.  Kansas  City  v.  Cook,  30  Mo.  App. 

717,  40  Am.  St.  249.  660;  Duluth  v.   Mallett,  43  Minn. 

s*  State  v.   City   of  Trenton,   53  204. 

N.   J.   L.   132,   20  Atl.   Rep.   1076;  66  Ex  parte  Frank,  52  Cal.  606, 

Paxton  v.  Sweet,  30  N.  J.  L.  196;  28  Am.  Rep.  642;  Grand  Rapids  v. 

Lewis    v.    Newton,    75    Fed.    884 ;  Braudy,  105  Mich.  670,  32  L.  R.  A. 

Littlefield  v.  State,  42  Neb.  223,  47  116 ;  Swift  v.  Topeka,  43  Kan.  671, 

Am.     St.     697 ;     Mayor     v.     Dry  8  L.  R.  A.  772. 


154  PUBLIC   CORPORATIONS.  [§  152 

II.   ILLUSTRATIONS  OF  VALID  AND  INVALID  ORDINANCES. 

§  152.  Laying  pipes  in  streets, — An  ordinance  prohibiting 
the  opening  of  streets  for  the  purpose  of  laying  gas  mains  be- 
tween the  first  of  December  and  the  first  of  the  following  March 
is  reasonable,57  although  an  ordinance  entirely  prohibiting  the 
opening  of  a  paved  street  for  the  purpose  of  laying  pipes  from 
the  main  to  the  opposite  side  of  the  street  is  unreasonable,  as  it 
would  tend  to  increase  the  price  of  gas  by  requiring  mains  to 
be  laid  on  each  side  of  the  street.58 

§  153.  Location  and  speed  of  vehicles. — A  city  may  reason- 
ably require  stages  or  other  such  vehicles  to  keep  off  certain  nar- 
row and  crowded  streets,59  or  prohibit  vehicles  containing  perish- 
able produce  to  stand  in  a  public  street  longer  than  twenty  min- 
utes between  certain  hours  of  the  day.60  So  it  may  properly 
provide  that  a  hackney  coach  shall  not  stand  within  thirty  feet 
of  any  public  place  of  amusement,81  and  that  vehicles  used  for 
hire  shall  occupy  only  certain  designated  stands.62  The  speed 
of  vehicles  on  streets  may  be  regulated,63  even  without  express 
authority.64  But  an  ordinance  prohibiting  driving  on  a  street 

67  Commissioners  v.  Gas  Co.,  12  licensed  peddlers.    Com.  v.  Fenton, 

Pa.     St.     318 ;     Commissioners    v.  139  Mass.  195,  29  N.  E.  653. 

North  Liberties  Gas  Co.,  2  Jones,  «i  Com.  v.  Robertson,  5  Cush.  439. 

318.  62  Com.  v.  Matthews,  122  Mass. 

ss  Commissioners  v.  North  Liber-  60.    Fixing  the  fare  which  may  be 

ties  Gas  Co.,  2  Jones,  318.    An  ordi-  charged  by  coaches.    Com.  v.  Gage, 

nance  regulating  the  stringing  of  118  Mass.  328.    Imposing  a  moder- 

wires  in  a  city,  which  provides  that  ate  tax  upon  all  vehicles  used  on 

"whenever  it  shall  be  necessary  to  the  streets.     St.  Louis  v.  Green,  70 

cross  the  line  of  any  existing  tele-  Mo.  562.    The  place  may  be  deter- 

phone  line  or  lines     *     *     *     the  mined  by  a  marshal  or  policeman, 

person   or   company   making   such  Veneman  v.  Jones,  118  Ind.  41,  20 

crossing  shall  supply  all  necessary  N.  E.  644;   St.  Paul  v.   Smith,  27 

safeguards  for  the  same,"  is  rea-  Minn.  364. 

sonable.     State  v.   Janesville,   etc.  ™  State   v.    Sheppard,   64   Minn. 

Ry.  Co.,  87  Wis.  72,  41  Am.  St.  Rep.  287,   36  L.   R.   A.   305,   and  note; 

23.  Scudder  v.  Hinshaw,  134  Ind.  56; 

5»Com.  v.  Stodder,  2  Cush.  563;  Com.  v.  Adams,  114  Mass.  323,  19 

Com.  v.  Mulhall,  162  Mass.  496,  44  Am.  Rep.  362;  People  v.  Little,  86 

Am.  St.  Rep.  387.    See  supra,  §  66.  Mich.  125. 

eo  Com.  v.  Brooks,  109  Mass.  355.  64  Reynolds  v.  Mandain,  4  Harr. 

An  ordinance  prohibiting  vehicles  (Del.)    317;  Mittelstadt  v.  Morri- 

from  standing  in  the  street  more  sou,  76  Wis.  265. 
than    twenty    minutes    applies    to 


§154] 


VALIDITY   OF   ORDINANCES. 


155 


at  a  speed  of  more  than  six  miles  an  hour  is  unreasonable  when 
applied  to  'the  members  of  a  salvage  corps  when  responding  to  an 
alarm  of  fire.65 

§  154.  Handling  of  trains. — A  city  may  regulate  the  run- 
ning of  railway  trains  across  and  over  its  streets,  but  the  ordi- 
nances must  be  reasonable  and  take  into  consideration  the  various 
conditions  existing  in  different  parts  of  the  city.66  An  ordi- 
nance limiting  the  speed  to  six  miles  per  hour  is  reasonable ;  67  but 
a  limitation  to  four  or  six  miles  an  hour  is  unreasonable  when 
applied  to  that  part  of  the  road  in  the  suburbs  of  the  city,  where 
the  road  is  securely  fenced  on  each  side  and  there  is  but  one 
grade  crossing.68  Ordinances  forbidding  trains  from  standing 
across  a  public  street  longer  than  two  minutes,69  or  from  stopping 
on  a  street  crossing  for  any  other  purpose  than  to  prevent  acci- 
dent in  the  face  of  immediate  danger,70  or  requiring  railway  com- 
panies to  keep  flagmen  at  dangerous  crossings,71  or  prohibiting 
boys  and  others  not  connected  with  the  train  service  from  get- 
ting on  or  off  moving  trains  within  the  city  limits,72  are  reason- 
able and  valid.  But  ordinances  requiring  railway  companies  to 


os  State  v.  Sheppard,  64  Minn.  287. 

6e  Lake  View  v.  Tate,  130  111.  247, 
22  N.  E.  791,  6  L.  R.  A.  268 ;  Evison 
v.  Chicago,  etc.  R.  Co.,  45  Minn. 
370,  11  L.  R.  A.  434 ;  Buffalo  v.  New 
York,  etc.  R.  Co.,  152  N.  Y.  276,  46 
N.  E.  496;  Prewitt  v.  Missouri, 
etc.  Ry.  Co.,  134  Mo.  615,  36  S.  W. 
667;  Larkin  v.  Burlington,  etc. 
Ry.  Co.,  85  Iowa,  492;  Gratiot  v. 
Mo.  Pac.  Ry.  Co.,  116  Mo.  450,  16 
L.  R.  A.  189 ;  Pennsylvania  Co.  v. 
Horton,  132  Ind.  187;  Burg  v.  Chi- 
cago, etc.  R.  Co.,  90  Iowa,  106. 

67  Knobloch  v.  Railway  Co.,  31 
Minn.  402,  18  N.  W.  106 ;  Buffalo  v. 
New  York,  etc.  Ry.  Co.,  152  N.  Y. 
276,  46  N.  E.  Rep.  496;  Com.  v. 
Worcester,  3  Pick.  461;  Gahagan 
v.  Railway  Co.,  1  Allen,  187. 

es  Evison  v.  Chicago,  etc.  Ry.  Co., 
45  Minn.  370 ;  Burg  v.  Chicago,  etc. 
Ry.  Co.,  90  Iowa,  106,  48  Am.  St. 


419.  See  Larkin  v.  Burlington, 
etc.  Ry.  Co.,  85  Iowa,  492,  52  N.  W. 
480.  Local  trains  may  be  ex- 
cepted  from  the  operation  of  an 
ordinance.  Buffalo  v.  New  York, 
etc.  Ry.  Co.,  152  N.  Y.  276,  46  N.  E. 
496. 

69  State  v.  Mayor,  etc.,  37  N.  J.  L. 
348;  Birmingham  v.  Alabama,  etc. 
Ry.  Co.,  98  Ala.  134,  13  So.  141. 

TO  Duluth  v.  Mallett,  43  Minn.  204. 

71  Railway  Co.  v.  East  Orange,  41 
N.  J.  L.  127.  In  Village  of  Ravenna 
v.  Pennsylvania  Co.,  45  Ohio  St.  118, 
12  N.  E.  445,  it  was  held  that 
municipal  corporations  in  Ohio  have 
no  power  to  compel  a  railway  com- 
pany to  keep  a  watchman  at  their 
crossings,  and  see  Pittsburg,  etc. 
R.  Co.  v.  Crown  Point,  146  Ind.  421, 
35  L.  R.  A.  684. 

72Reardon  v.  Madison,  73  Ga. 
184. 


156  PUBLIC   CORPORATIONS.  [§  155 

keep  flagmen  by  day  and  red  lanterns  by  night  at  ordinary  cross- 
ings where  there  is  no  unusual  danger,73  or  prohibiting  a  railway 
company  between  6  A.  M.  and  11  P.  M.  from  moving  its  cars 
across  the  street  for  the  purpose  of  being  distributed  in  their 
yards,  without  regard  to  whether  they  are  stopped  on  the  street, 
are  unreasonable.74  So  an  ordinance  which  requires  a  railroad 
company,  whose  only  scheduled  train  at  night  passes  at  eight 
o'clock,  to  light  each  street  which  it  crosses  with  an  electric  light 
from  dark  to  dawn,  is  unreasonable  and  void.75 

§155.  Regulation  of  street  railways. — Street  railways  are 
subject  to  a  variety  of  regulations  that  are  rendered  reasonable 
and  necessary  by  reason  of  the  conditions  surrounding  their 
business.  Thus,  they  may  by  ordinance  be  required  to  make 
quarterly  reports  of  the  number  of  passengers,76  to  pave  the  sides 
of  the  streets  through  which  they  run,77  and  to  provide  a  driver 
and  conductor  on  each  car.78 

§  156.  Parades,  music,  and  speaking  in  public  places. — It  is 
very  doubtful  whether  a  city  can,  under  the  general  power  over 
its  streets,  prohibit  their  use  for  the  purpose  of  parades  and 
processions.  But  it  may  regulate  such  uses  by  prescribing  the 
time  and  manner  of  the  use,  and  may  make  the  right  conditional 
upon  the  consent  of  certain  officials.  But  the  actions  of  the  offi- 
cial must  be  governed  by  a  prescribed  general  rule.  It  cannot 
be  left  to  the  arbitrary  discretion  of  the  official.79  An  ordinance 

73  Toledo,  etc.  R.  Co.  v.  Jackson-  948,  19  L.  R.  A.  859,  annotated ;  In 
ville,  67  111.  37,  16  Am.  Rep.  611.  re  Frazee,  63  Mich.  396,  6  Am.  St. 

74  Birmingham  v.   Alabama,   etc.  310.      Street     parades     cannot    be 
Ry.    Co.,     98     Ala.     134,     13     So.  prohibited   (Rich  v.  Naperville,  42 
141.  111.  App.  222 ;  Bloomington  v.  Rich- 

75  Cleveland,  etc.  R.  Co.  v.  Con-  ardson,  38  111.  App.  60 ;  People  v. 
nersville,  147  Ind.  277,  37  L.  R.  A.  Rochester,  44   Hun    (N.   Y.),   166; 
175.  Anderson  v.   Wellington,   40  Kan. 

76  St.  Louis  v.  St.  Louis  Ry.  Co.,  173,  2  L.  R.  A.  110 ;  State  v.  Hughes, 
89  Mo.  44.  72  N.  C.  25),  but  may  be  regulated 

77  City  v.  Erie  Pass.  Ry.  Co.,  7  In  order  to  prevent  their  becoming  a 
Phil.  321.  public  annoyance.  Chariton  v.  Sim- 

78  South  Cov.,  etc.  Ry.  Co.  v.  Ber-  mons,  87  Iowa,  226 ;  Com.  v.  Plais- 
ry,    93    Ky.    43,    18    S.    W.    1026 ;  ted,  148  Mass.  375,  2  L.  R.  A.  142 ; 
State  v.  Trenton,  53  N.  J.  L.  132,  State  v.  White,  64  N.  H.  48;  Rod- 
20  Atl.  1076.  erick  v.  Whitson,  51  Hun  (N.  Y.) 

79  See  §  165,  post;  State  v.  Der-  620 ;  White  v.  State,  99  Ga.  16,  37 
Ing,    84    Wis.     585,    36    Am.     St.  L.  R.  A.  642. 


§  157]  VALIDITY  OP  ORDINANCES.  157 

prohibiting  street  parades  with  shouting  and  music  without  the 
permission  of  a  city  officer,  but  excepting  certain  organizations 
from  its  operation,  is  unreasonable.80  The  same  objection  exists 
to  an  ordinance  which  forbids  any  person  not  acting  under  the 
orders  of  a  military  officer  to  play  any  musical  instrument  in  the 
street  on  Sunday.81  But  an  ordinance  forbidding  the  beating  of 
drums  and  shouting  on  the  streets  without  a  permit  from  the 
mayor  was  recently  held  valid.82  So  a  city  may  prohibit  speak- 
ing in  a  public  park  without  such  a  permit.83  The  supreme  court 
of  Massachusetts  said :  ' '  For  the  legislature  absolutely  or  condi- 
tionally to  forbid  public  speaking  in  a  highway  or  public  park 
is  no  more  an  infringement  of  the  rights  of  a  member  of  the 
public  than  for  the  owner  of  a  private  house  to  forbid  it  in  his 
house.  "When  no  proprietary  right  interferes,  the  legislature 
may  end  the  right  of  the  public  to  enter  upon  the  public  place 
by  putting  an  end  to  the  dedication  to  public  uses.  So  it  may 
take  the  less  step  of  limiting  the  public  use  to  certain  purposes.84 
If  the  legislature  had  power  under  the  constitution  to  pass  a  law 
in  the  form  of  the  present  ordinance,  there  is  no  doubt  that  it 
could  authorize  the  city  of  Boston  to  pass  the  ordinance,  and  it 
is  settled  by  the  former  decision." 

§  157.  Licenses. — The  principles  which  govern  the  granting 
of  licenses  have  already  been  considered.  There  must  be  some- 
thing connected  with  the  business  to  be  licensed  which  gives  rise 
to  the  necessity  for  some  degree  of  supervision.  Hence  a  license 
may  reasonably  be  required  from  those  who  sell  milk,85  peddle 
goods  from  house  to  house,86  sell  papers  on  the  street,87  sell 
articles  in  certain  streets,88  or  engage  in  certain  kinds  of  busi- 


so  State  v.  Dering,  84  Wis.  585,  407,  651,  656,  666 ;  Brooklyn  Park 

19  L.  R.  A.  858.  Corn'rs  v.  Armstrong,  45  N.  Y.  234, 

si  Johnson  v.  Mayor  of  Croydon,  243,  244,  6  Am.  Rep.  70. 

16  Q.  B.  D.  708,  7  Eng.  Rul.  Cas.  ss  People  v.  Mulholland,  82  N.  Y. 

278-  324 ;  State  v.  Nelson,  66  Minn.  166, 

82  in  re  Flaherty,  105  Cal.  558,  27  68  N.  W.  1066.    See  §  52. 

L.  R.  A.  529.  se  state  Center  v.  Barenstein,  66 

ss  Davis  v.  Com.,  167  U.   S.  43,  Iowa,  249. 

162  Mass.  510,  44  Am.  St.  389,  26  87  Com.  v.  Elliott,  121  Mass.  367. 

L.  R.  A.  712.  ss  Nightingale,  Petitioner,  11  Pick. 

s*  See   Dill.    Mun.    Corp.,   §§393,  168. 


158  PUBLIC   CORPORATIONS.  [§  158 

ness,  such  as  butchers89  and  cattle  dealers.90  The  amount  of 
license  fee  which  can  be  exacted  as  a  police  measure  varies  ac- 
cording to  the  nature  of  the  occupation  licensed.  It  must  not 
exceed  a  sum  which  is  sufficient  to  reimburse  the  municipality  for 
the  probable  trouble  and  expense  of  issuing  the  license  and  in- 
specting and  regulating  the  business.91  Thus,  a  license  fee  of 
$300  for  an  auctioneer,92  $25  for  a  peddler,93  or  $200  for  a 
butcher94  has  been  held  unreasonable.  But  when  the  amount  of 
the  license  fee  is  determined  by  the  state  through  legislative 
enactment,  its  reasonableness  cannot  be  determined  by  the 
courts.95 

§  158.  Discrimination  against  non-residents. — An  ordinance 
which  discriminates  against  a  non-resident  by  requiring  a  larger 
license  fee  from  a  non-resident  than  from  a  resident  is  unrea- 
sonable and  void.96  There  must  be  no  discrimination  between 
those  engaged  in  the  same  business  or  between  residents  and  non- 
residents.97 

§  159.  Regulation  of  markets. — A  city  may  reasonably  pro- 
vide by  ordinance  that  wagons  loaded  with  produce  shall  not 

8»  St.  Paul  v.  Colter,  12  Minn.  41  95  State    v.    Harrington,    68    Vt. 

(Gil.  16).  622,  34  L.  R.  A.  100. 

90  St.  Louis  v.  Knox,  6  Mo.  App.  96  Muhlenbrinck  v.  Com.,  44  N.  J. 
247.     In  this  case  the  dealer  was  L.  365 ;  State  v.  City  of  Orange,  50 
required  to  have  a  certificate  of  N.   J.   L.   389,   13   Atl.   240;   Bor- 
good  moral  character.  ough  of  Sayre  v.  Phillips,  148  Pa. 

91  North   Hudson   Co.   R.   Co.   v.  St.    482,    24    Atl.    76;     State    v. 
Hoboken,  41  N.  J.  L.  81.     If  the  Ocean  Grove,  etc.  Ass'n,  55  N.  J. 
amount    exacted    is    unreasonably  L.    507,    26    Atl.    798.      The    real 
large  in  view  of  the  purpose  for  objection  to  these  ordinances  is  not 
which  it  is  to  be  paid,  the  ordi-  that  they  are  an  unreasonable  ex- 
nance  is  void.    Littlefleld  v.  State,  ercise  of  power,  but  that  they  are 
42  Neb.  223,  47  Am.  St.  697.  unconstitutional. 

92  Mankato  v.  Fowler,  32  Minn.  A  city  may,  by  ordinance,  fix  the 
364.  number  of  hours  which  its  work- 

93  State  Center  v.  Barenstein,  66  men    shall    work    on    the    public 
Iowa,  249,  23  N.  W.  652.  works ;  but  it  cannot  make  a  viola- 

9*  St.  Paul  v.  Colter,  12  Minn.  41.  tion  of  the  ordinance  an  indictable 
See  State  v.  Wheelock,  95  Iowa,  offense.  State  v.  McNally,  48  La. 
577,  64  N.  W.  620,  30  L.  R.  A.  Ann.  1450,  21  So.  27,  36  L.  R.  A.  533. 
429.  For  many  authorities  on  the  97  City  of  Indianapolis  v.  Bieler, 
limit  of  the  amount  of  license  fees,  138  Ind.  30,  36  N.  E.  857 ;  Clem- 
see  note  to  State  v.  French,  17  ents  v.  Town  of  Casper,  4  Wyo.  494, 
Mont  54,  in  30  L.  R.  A.  415.  35  Pac.  472. 


§  160]  VALIDITY  OF  ORDINANCES.  159 

remain  in  the  market  place  for  more  than  twenty  minutes  dur- 
ing certain  hours ; x  that  persons  not  licensed  occupants  of  stalls 
shall  not  offer  meats  for  sale  in  less  than  certain  quantities ; 2  or 
that  fresh  beef  shall  not  be  sold  in  less  than  quarters,  except 
between  dawn  and  9  A.  M.3  An  ordinance  fixing  a  penalty  for 
each  hour  that  a  wagon  is  kept  in  a  public  market  is  unreason- 
able.4 

§  160.  Regulation  of  liquor  traffic. — A  municipality  may 
make  reasonable  regulations  with  reference  to  the  sale  of  in- 
toxicating liquors  without  violating  the  constitutional  right  of 
equal  protection  and  privilege.5  Thus,  it  may  limit  the  dis- 
tricts or  precincts  of  a  city  in  which  liquor  may  be  sold.6  Drug- 
gists may  be  prohibited  from  selling  liquor  except  for  medicinal 
purposes.7  It  may  provide  by  ordinance  that  no  license  shall 
be  issued  to  any  person  until  he  obtains  the  consent  of  two- 
thirds  of  the  freeholders  residing  within  three  miles  of  his  pro- 
posed place  of  business,8  or  that  the  granting  of  a  license  shall 
be  dependent  upon  the  consent  of  the  county  officials.9  The  rea- 
sonableness of  an  ordinance  requiring  saloons  to  close  at  a  cer- 
tain hour  must  be  determined  by  the  size  of  the  municipality  and 
the  character  of  its  population.  Ordinances  requiring  them  to 
close  at  nine,10  ten  "  and  eleven,12  from  10 :30  P.  M.  to  5  A.  M.,13 
and  from  midnight  to  5  A.  M.,14  have  been  held  reasonable.  But 
an  ordinance  forbidding  licensed  retailers  to  sell  between  6  P.  M. 
and  6  A.  M.  is  unreasonable,  as  it  "deprives  a  party  of  several 
hours  of  daylight  in  which  he  is  forbidden  to  exercise  a  right  con- 

1  Com.  v.  Brooks,  109  Mass.  355.        «  Metcalf  v.  State,  76  Ga.  208. 

2  St.  Louis  v.  Weber,  44  Mo.  547.        »  Wagner    v.    Town    of    Garrett, 
s  Bowling   Green   v.    Carson,   10    118  Ind.  114 ;  State  v.  Hellman,  56 

Bush  (Ky.),  164.  Conn.  190. 

4  Com.  v.  Wilkins,  121  Mass.  356.        10  Smith    v.    Knoxville,    3    Head 

5  Giozza  v.  Tiernan,  148  U.  S.  657 ;     (Tenn.) ,  245. 

Ex  parte  Hayes,  98  Cal.  555,  20  L.  "  State  v.  Washington,  44  N.  J. 

R.   A.   701 ;    Decie   v.   Brown,   167  L.  605 ;  Ex  parte  Wolf,  14  Neb.  24 ; 

Mass.  290,  45  N.  E.  Rep.  765.  Morris  v.  Rome,  10  Ga.  532. 

e/n   re   Wilson,    32    Minn.    145;  -12  Decker   v.    Sergeant,   125   Ind. 

State  v.  Clark,  28  N.  H.  176.     It  404. 

may  limit  the  license  to  one  for  each  is  State  v.  Welch,  36  Conn.  215. 

thousand  of  the  population.    Decie  1*  Bright  v.  Toronto,  12  U.  C.  O. 

v.  Brown,  167  Mass.  290.  P.  433. 

7  Provost    City    v.    Shurtleff,    4 
Utah  15,  5  Pac.  302. 


160  PUBLIC   CORPORATIONS.  [§  161 

f erred  by  the  state."15  So  an  ordinance  requiring  such  persons 
to  close  their  doors  and  cease  selling  whenever  ' '  any  denomination 
of  Christian  people  are  holding  divine  service"  is  void.16  An 
ordinance  which  prohibits  the  employment  of  women  in  saloons 
is  a  reasonable  exercise  of  the  power  to  regulate  such  places ; 17 
but  when  the  constitution  provides  that  no  person  shall  be  dis- 
qualified by  reason  of  sex  from  pursuing  any  lawful  occupation, 
an  ordinance  forbidding  the  proprietors  of  drinking  saloons  to 
permit  any  females  to  be  employed  in  their  places  after  a  certain 
hour  is  invalid.18 

§  161.  Fire  regulations.— Power  to  establish  fire  limits  and 
prohibit  the  erection  of  certain  kinds  of  buildings  within  such 
limits  must  be  reasonably  exercised.  Hence  an  ordinance  which 
absolutely  prohibits  the  altering,  repairing  or  rebuilding  of  any 
frame  building  within  certain  limits  whenever  the  amount  to  be 
expended  exceeds  $300  is  arbitrary  and  unreasonable,  and  prac- 
tically amounts  to  the  taking  of  the  property  without  due  process 
of  law.19 

§  162.  Quarantine  regulations — Second-hand  clothing. — The 
business  of  dealing  in  second-hand  clothing  is  a  proper  one  for 
police  regulation.20  In  the  absence  of  an  epidemic  causing  an 
apparent  necessity  therefor,  an  ordinance  prohibiting  any  one 
from  bringing  second-hand  clothing  into  a  town,  or  exposing  it 
for  sale  therein,  without  furnishing  proof  that  it  did  not  come 
from  an  infected  district,  is  an  unreasonable  restraint  of  trade.21 

IB  Ward    v.    Greenville,    8    Bax.  Ehrenreich,  80  Ala.  579,  60  Am.  Rep. 

(Term.),  228.  130;  Weil  v.  Record,  24  N.  J.  Eq. 

is  Gilham  v.  Well,  64  Ga.  192.  See  169 ;  State  v.  Long  Branch,  42  N.  J. 

State  v.  Strauss,  49  Md.  288.  L.  364,  36  Am.  Rep.  518 ;  State  v. 

IT  Bergman  v.  Cleveland,  39  Ohio  Segel,   60   Minn.   507 ;   Marmet  v. 

St.    651 ;    State    v.    Considine,    16  State,  45  Ohio  St.  63.    A  very  clear 

Wash.  358,  47  Pac.  Rep.  755.  abuse  of  the  police  power  must  be 

is  In  re  M'Guire,  57  Cal.  604.  See  shown  in  order  to  justify  a  court 

Black,  Intox.  Liq.,  §  236.  in  declaring  ordinances  regulating 

i»  First  Nat.  Bank  v.  Sarles,  129  the  business  of  pawnbrokers,  junk- 

Ind.    201,    28    Am.    St.    185.      As  dealers  and  dealers  in  second-hand 

to  the  power  to  establish  fire  limits  goods  unreasonable  and  void.  Grand 

under  the  general  welfare  clause,  Rapids  v.  Braudy,  105  Mich.  670,  32 

see  Kaufmann  v.  Stein,  138  Ind.  49,  L.  R.  A.  116. 

46  Am.  St.  368.  21  Town  of  Kosciusko   v.   Stom- 

20  State  v.  Taft,  118  N.  C.  1190,  berg,  68  Miss.  469,  9  So.  297. 
32  L.  R.  A.  122 ;  Greensborough  v. 


§  163]  VALIDITY  OF   ORDINANCES.  161 

§  163.  Hotel  runners  and  hackmen. — A  city  may  regulate 
the  conduct  of  hackmen,  hotel  runners  and  porters.  An  ordi- 
nance limiting  the  number  of  hackmen  who  may  stand  in  front 
of  a  hotel  is  reasonable  when  there  are  other  hack-stands  in  the 
city.22  Such  persons  may  be  forbidden  to  solicit  business  at  the 
depots  and  railway  platforms  within  the  city  limits.  But  a  city 
cannot  interfere  with  the  reasonable  regulations  of  the  railway 
companies  for  the  handling  of  passengers.  Thus,  an  ordinance 
which  forbids  hotel  runners  from  going  within  twenty  feet  of 
the  train,  although  permitted  to  do  so  by  the  rules  of  the  com- 
pany, is  invalid.23 

§  164.  Miscellaneous  decisions. — An  ordinance  forbidding 
smoking  in  street  cars  is  a  reasonable  exercise  of  the  power  to 
protect  the  public  health  and  to  suppress  nuisances.24  The  de- 
cisions are  in  conflict  upon  the  question  of  the  right  of  the  city 
to  require  the  owners  of  lots  to  clean  the  snow  from  the  sidewalk 
in  front  of  their  premises  at  their  own  expense.25  An  ordinance 
requiring  all  restaurants  to  close  at  ten  o'clock  at  night  is  rea- 
sonable under  certain  conditions.26  An  ordinance  which  requires 
the  keepers  of  boarding-houses,  restaurants  and  hotels  tft  furnish 
the  city  with  the  names  of  all  persons  boarding  or  lodging  at 
their  houses  is  reasonable.27  A  city  may  require  pawnbrokers  to 
furnish  the  police  with  a  record  of  all  property  received  and  a 
description  of  the  persons  from  whom  received.28  So  it  may 
prohibit  pawnbrokers  from  purchasing  the  articles  upon  which 
they  make  loans  of  money.29  An  ordinance  which  requires  the 
proprietors  of  theaters  to  pay  a  police  officer  two  dollars  per 

22  Montgomery  v.  Parker,  114  Ala.  as  required  by  statute,  see  Flynn  v. 

118,  21  So.  452.  Canton  Co.,  40  Md.  312, 17  Am.  Rep. 

23Napman   v.    People,    19   Mich.  603. 

352.  26  state  v.  Freeman,  38  N.  H.  426. 

24  State   v.    Huydenham,   42   La.  27  Topeka   v.   Boutwell,   53  Kan. 
Ann.  483,  7  So.  621.  20,  27  L.  R.  A.  593. 

25  in  support  of  the  power,  see  28  Kansas    City    v.    Gamier,    57 
Goddard's  Case,   16   Pick.   504,   28  Kan.  412,  46  Pac.  Rep.  707.     The 
Am.  Dec.  259.     Contra,  Gridley  v.  decisions  on  the  power  to  regulate 
Bloomington,   88   111.   554,   30  Am.  the  business  of  pawnbrokers,  junk 
Rep.  566 ;  Chicago  v.  O'Brien,  111  dealers,  etc.,  are  collected  in  a  note 
111.  532,  53  Am.  Rep.  640.    As  to  the  to   Grand   Rapids   v.   Brandy,   105 
liability  of  owners  for  damages  for  Mich.  670,  32  L.  R.  A.  116. 
injuries   occasioned   by   failure   to  29  Kuhn  v.  Chicago,  30  111.  App. 
remove  ice  and  snow  from  sidewalk  203. 

11 


162  PUBLIC   CORPORATIONS.  [§  1C5 

night  for  attendance  at  theaters  for  the  purpose  of  preserving 
order  is  unreasonable  and  void.30  When  a  city  furnishes  gas  and 
water  to  its  inhabitants  for  a  compensation  it  may  provide  by 
ordinance  that  the  gas  or  water  may  be  stopped  after  ten  days' 
default  in  the  payment  of  the  bill  and  until  the  same  is  paid.31 
An  ordinance  requiring  that  garbage  shall  be  removed  in  water- 
tight closed  carts  or  wagons,  which  shall  be  marked  with  the 
word  "garbage,"  is  reasonable.32  The  owner  of  a  lot  may  be 
required  to  remove  filth  from  a  private  way  adjoining  his  land 
although  he  did  not  place  it  there.33  An  ordinance  which  pro- 
hibits any  person  from  permitting  drunkards  or  disorderly  per- 
sons to  assemble  at  or  remain  in  his  "house,  tavern,  inn, 
saloon,  cellar,  shop,  office  or  other  residence  or  place  of  business" 
is  unreasonable  and  void  because  not  limited  to  places  which  re- 
quire police  supervision,  nor  to  assemblages  of  immoral  per- 
sons.34 

III.     ORDINANCES  WHICH   PROHIBIT   ACTS   EXCEPT   WITH   THE 
CONSENT  OF  CERTAIN  OFFICIALS. 

§  165.  General  statement. — Municipalities  often  enact  ordi- 
nances which  assume  to  make  the  legality  of  an  act  depend  upon 
the  previously  obtained  consent  of  a  designated  official.  In  the 
earlier  decisions  such  ordinances  were  sustained  without  special 
reference  to  this  feature.  The  present  tendency,  however,  is  to- 
wards treating  the  provision  as  an  improper  delegation  of  au- 
thority, as  contravening  common  right,  or  as  failing  to  provide 
uniform  and  impartial  conditions,  thus  placing  it  in  the  power  of 
the  official  to  discriminate  between  citizens  entitled  to  equal  rights 
before  the  law.  Such  ordinances  may  be  roughly  thrown  into 
five  classes: 

1.  Those  which  divide  persons  into  classes  without  reference 
to  their  character  or  qualifications,  placing  on  one  side  of  the 
dividing  line  those  who  are  permitted  to  pursue  their  business 
by  the  consent  of  the  official,  and  on  the  other  side  those  from 

so  Waters  v.  Leach,  3  Ark.  110.  »s  Com.  v.  Cutler,  156  Mass.  52, 

si  Com.  v.  Philadelphia,  132  Pa.  29  N.  E.  1146. 

St.  238.  a*  Grand  Rapids  v.  Newton,  111 

32  People  v.  Gordon,  81  Mich.  306,  Mich.  48.  35  L.  R.  A.  226 ;  Ex  parte 

45  N.  W.  658.  Smith,  135  Mo.  223,  33  L.  R.  A.  606. 


§  166]  VALIDITY  OF  ORDINANCES.  163 

whom  that  consent  is  withheld.     Such  ordinances  are  almost 
universally  held  unconstitutional  and  invalid. 

2.  Those  in  which  discretion  is  granted  to  public  officials  to 
determine  the   qualifications  of  applicants  for  licenses,  where 
the  fitness  of  the  applicant  is  left  to  the  judgment  of  the  officer. 
Such  ordinances  are  held  valid,  as  they  violate  no  constitutional 
rights,  and  require  only  an  administrative  determination  of  facts. 

3.  Those  which  prescribe  uniform  conditions,  and  authorize 
some  official  to  determine  whether  such  conditions  have  been 
complied  with.     There  can  be  no  objection  to  ordinances  of  this 
kind,  as  the  duties  delegated  to  the  officer  are  of  a  ministerial 
character. 

4.  Those  which  assume  to  regulate  the  doing  of  lawful  acts, 
and  give  some  officer  discretion  and  power  to  grant  or  refuse  per- 
mission. 

5.  Those    which    authorize    and    empower    some    officer    to 
authorize  or  forbid  arbitrarily  an  act  illegal  under  the  general 
terms  of  the  ordinance  or  the  laws  of  the  state. 

The  two  latter  classes  will  be  considered  in  the  following  sec- 
tions. 

§  166.  Cases  sustaining  such  ordinances. — As  above  stated, 
ordinances  containing  this  provision  have  often  been  sustained, 
but  generally  without  the  question  under  consideration  being 
raised.35  In  a  recent  California  case  3G  an  ordinance  which  made 
it  unlawful  to  beat  a  drum  upon  a  traveled  street  without  special 
permission  from  the  president  of  the  board  of  trustees  was  held 
valid.  In  answer  to  the  contention  that  the  ordinance  was  op- 
pressive and  gave  too  much  power  to  an  officer,  the  court  said: 
"Laws  are  not  made  upon  the  theory  of  the  total  depravity  of 
those  who  are  elected  to  administer  them ;  and  the  presumption 
is  that  municipal  officers  will  not  use  these  small  powers  vil- 
lainously and  for  the  purpose  of  mischief  and  oppression."  The 


ss  This  is  true  of  Hine  v.  New  529,  but  are  of  little  value  in  sup- 
Haven,  40  Conn.  478 ;  Nightingale's  port  of  the  proposition  contended 
Petition,  11  Pick.  168;  Vanderbilt  for. 

v.  Adams,  7  Cow.  349 ;  Pedrick  v.  se  in  re  Flaherty,  105  Cal.  528,  27 
Bailey,  12  Gray,  161.     These  cases  L.  R.  A.  529.     See  Barbier  v.  Con- 
are  cited  in  the  recent  case  of  In  re  nolly,  113  U.  S.  27,  28  L.  ed.  923. 
Flaherty,  105  Cal.  558,  27  L.  R.  A. 


164:  PUBLIC   CORPORATIONS.  [§  167 

same  court  sustained  an  ordinance  which  prohibited  the  repair 
or  alteration  of  any  wooden  building  within  designated  fire  limits 
without  written  permission  of  certain  officers,  on  the  ground  that 
the  provision  was  necessary  in  order  to  avoid  the  hardships  in- 
cident to  the  literal  enforcement  of  the  prohibition ;  and  that  as 
no  general  rule  could  be  established,  it  was  proper  to  leave  the 
power  to  the  official,  who  would  not  "be  presumed  to  exercise 
it  wantonly  or  for  the  purpose  of  profit  or  oppression. ' ' 37 

Ordinances  which  require  an  applicant  for  a  saloon  license  to 
obtain  the  consent  of  a  certain  number  of  voters  or  residents  in 
the  vicinity  of  his  proposed  place  of  business  are  generally  sus- 
tained.38 But  a  city  council  cannot  delegate  the  power  to  grant 
licenses  to  the  mayor.39  Nor  can  it  grant  to  the  mayor  the  power 
to  determine  the  district  within  which  licenses  may  be  granted.40 
But  it  may  authorize  him  to  grant  a  license  when  certain  pre- 
scribed conditions  have  been  complied  with.41 

§  167.  Delegation  of  authority. — Such  ordinances  are  very 
frequently  held  invalid  as  attempts  to  delegate  legislative  power. 
Thus,  an  ordinance  which  delegated  to  the  owners  of  one-half 


37  Ex  parte  Fiske,  72  Cal.  125,  tensen,    43    Fed.    243,    an    ordi- 

citing  Barbier  v.  Connolly,  113  U.  nance  which  required  the  applicant 

S.  27 ;  Soon  Hing  v.  Crowley,  113  to  obtain  the  consent  of  a  majority 

U.  S.  703,  and  distinguishing  Tick  of  the  board  of  police  commission- 

Wo  v.  Hopkins,  118  U.  S.  356.    See,  ers  or  of  not  less  than  twelve  citi- 

also,  Easton  Com.  v.  Covey,  74  Md.  zens  owning  real  estate  in  the  block, 

262 ;  Com  .v.  Brooks,  109  Mass.  355.  was  held  invalid  on  the  ground  that 

Where  a  park  board  had  authority  it  left  to  the  persons  named  the 

to  "govern  and  regulate  the  parks"  power  to  control  the  liquor  traffic, 

and  to  "make  rules  for  the  govern-  and  as  vesting  in  them  arbitrary 

ment  thereof,"  a  rule  which  forbade  discretion.     See,  also,  Quong  Woo, 

"harangues,  orations  or  loud  out-  13  Fed.  229. 

cries"  in  a  park  "except  with  the        39  Kinmuudy   v.    Mahan,   72   111. 

prior   consent  of  the   board"   was  462 ;  State  v.  Bayonne,  44  N.  J.  L. 

held  valid  in  Com.  v.  Abraham,  156  114;   Trenton   v.   Clayton,   50  Mo. 

Mass.  57.    See  §  156,  supra.  App.  541. 

ss  Whitten  v.  Covington,  43  Ga.        40  state  v.  Kantler,  33  Minn.  69 ; 

421 ;  In  re  Bickerstaff,  70  Cal.  35 ;  In  re  Wilson,  32  Minn.  145. 
House    v.     State,    41    Miss.    737 ;        «  Swarth  v.  People,  109  111.  621 ; 

Groesch  v.  State,  42  Ind.  547 ;  State  Bradley  v.  Rochester,  54  Hun   (N. 

v.  Brown,  19  Fla.  563 ;  Jones  v.  Hil-  Y.),  140 ;  In  re  White,  43  Minn.  250. 
Hard,  69  Ala.  300.   But  in  re  Chris- 


§  168]  VALIDITY   OF   ORDINANCES.  165 

the  ground  in  any  block  the  power  to  determine  whether  a  livery- 
stable  should  be  erected  therein  was  held  invalid.42 

§168.  Nature  of  prohibited  act. — The  validity  of  such  an 
ordinance  is  sometimes  made  to  turn  upon  the  nature  of  the 
act  prohibited  thereby.  If  it  is  an  act  which  no  citizen  has  the 
inherent  right  to  do,  and  which  the  municipality  may  absolutely 
prohibit,  it  may  grant  the  privilege  under  such  conditions  as  it 
sees  proper.  In  considering  a  town  order  which  prohibited  the 
keeping  of  swine  "  without  a  permit  in  writing  first  obtained 
from  the  board  of  health,"  Mr.  Justice  Holmes  said:  "We  are 
at  a  loss  to  see  how  it  affects  the  validity  of  the  order  that  the 
board  expressly  reserved  to  themselves  a  power  to  do  what  they 
could  have  done  even  if  the  prohibition  had  been  absolute;  or 
how  the  defendants  are  put  in  a  worse  position  by  the  order  con- 
templating the  possibility  that  the  board  of  health  may  grant 
them  a  written  permit  than  if  it  had  excluded  that  possibility. ' '  43 
But  when  the  act  can  only  be  regulated  the  conditions  imposed 
must  be  general  and  uniform,  and  this  principle  is  violated  by 
an  ordinance  which  makes  the  exercise  of  the  right  subject  to 
the  arbitrary  discretion  of  any  person.44 

42  St.  Louis  v.  Russell,  116  Mo.    Christensen,  85  Cal.  208,  24  Pac. 
248,  20  L.  B.  A.  721,  note.     This     747. 

principle  will  be  found  discussed  in  **  In  re  Frazee,  63  Mich.  369 ; 
many  of  the  cases  cited  under  this  State  v.  Bering,  84  Wis.  585,  19  L. 
general  subject.  Vide  Anderson  v.  R.  A.  858 ;  Anderson  v.  Wellington, 
Wellington  and  In  re  Frazee,  supra.  40  Kan.  173,  2  L.  R.  A.  110.  In 
Contra,  Chicago  v.  Stratton,  162  111.  State  v.  Bering,  supra,  the  court 
494,  35  L.  R.  A.  84.  This  case  con-  said :  "It  is  susceptible  of  being 
tains  a  discussion  of  the  question  of  applied  to  offensive  and  improper 
the  validity  of  laws  which  are  made  uses,  made  subversive  of  the  rights 
dependent  upon  a  contingency,  and  of  private  citizens,  and  it  inter- 
cites  Locke's  Appeal,  72  Pa.  St.  491 ;  feres  with  and  abridges  their  privi- 
People  v.  Hoffman,  116  111.  587,  56  leges  and  immunities,  and  denies 
Am.  Rep.  793.  them  the  equal  protection  of  the 

43  Inhabitants  of  Quincy  v.  Ken-  law  and  the  enjoyment  of  their  un- 
nard,  151  Mass.  563;  In  re  Flaher-  doubted  rights.     In  the  exercise  of 
ty,  105  Cal.  558;  Ex  parte  Tuttle,  91  the  police  power  the  common  coun- 
Cal.  589 ;  In  re  Guerrero,  69  Cal.  88.  cil  may  in  its  discretion  regulate 
It  is  upon  this  theory  that  ordi-  the  exercise  of  such  rights  in  a 
nances  providing  that  the  issuing  reasonable  manner,  but  cannot  sup- 
of  liquor  licenses  shall  depend  upon  press  them  directly  or  indirectly,  by 
obtaining   the   consent   of   certain  attempting  to  submit  the  power  of 
officials  are  sustained.     Ex  parte  doing  so  to  the  mayor  or  any  other 


166  PUBLIC   CORPORATIONS.  [§  169 

§  169.  Uniform  conditions — Unjust  discrimination. — Al- 
though ordinances  of  this  kind  are  generally  said  to  be  unrea- 
sonable, the  real  objection  is  that  they  are  unconstitutional  be- 
cause in  violation  of  the  fourteenth  amendment  to  the  constitu- 
tion of  the  United  States,  which  prohibits  the  enactment  of  any 
law  which  abridges  the  privileges  or  immunities  of  citizens  or 
denies  to  any  person  the  equal  protection  of  the  laws.45  If  the 
conditions  upon  which  the  consent  of  the  official  is  to  be  given 
are  determined  and  are  uniform  and  applicable  to  all  citizens, 
the  ordinance  is  valid;  but  if  its  enforcement  rests  in  the  un- 
controlled discretion  of  any  officer  or  city  council,  it  is  invalid.48 
Thus,  an  ordinance  that  provides  that  no  one  shall  maintain  a 
market  within  certain  limits  without  the  permission  of  the  city 
council  is  invalid  because  the  discretion  is  in  no  way  regulated 
or  controlled,  and  no  conditions  are  prescribed  upon  which  per- 
mission shall  be  granted.47  So  an  ordinance  which  provides  that 
it  shall  be  unlawful  for  any  person  or  persons,  club  or  associa- 
tion of  any  kind  to  parade  the  streets  of  the  city  with  any  flag 
or  flags,  banners,  transparencies,  drums,  horns  or  other  musical 
instruments  without  first  having  procured  permission  of  the  city 
council  so  to  do  is  an  encroachment  upon  the  constitutional  rights 
of  citizens.48  So  an  ordinance  which  makes  it  unlawful  for  any 
person  to  parade  the  streets  of  the  city  shouting,  singing  and 

officer.    The  discretion  with  which  moving  contents  of  privy  vault.) 

the  council  is  vested  is  a  legal  dis-  This  provision  does  not  give  "any 

cretion,  to  be  exercised  within  the  arbitrary   discretion    by   which    to 

limits  of  the  law,  and  not  a  discre-  withhold  a  permit  from  a  suitable 

tion  to  transcend  it,  or  to  confer  person  properly  equipped  to  do  the 

upon  any  city  officer  an  arbitrary  work." 

authority,  making  him  in  its  exer-  «  State  v.  Dering,  84  Wis.  585, 19 

cise  a  petty  tyrant.  Such  ordinances  L.  R.  A.  858.    This  equal  protection 

or  regulations  to  be  valid  must  have  of  the  laws  is  a  pledge  of  the  "pro- 

an  equal  and  uniform  application  to  tection  of  equal  laws."    Yick  Wo  v. 

all  persons,  societies  or  organiza-  Hopkins,  113  TJ.  S.  369. 

tions  similarly  circumstanced,  and  46  In  re  Frazee,  63  Mich.  396 ;  Chl- 

not  be  susceptible  of  unjust  discrim-  cago  v.  Trotter,  136  111.  430. 

inations,  which  may  be  arbitrarily  47  State  v.  Dubarry,  44  La.  Ann. 

practiced  to  the  hurt,  prejudice  or  1117,     11    So.    718 ;    followed    in 

annoyance   of   any."     City   of   St.  State  v.  Deffes,  45  La.  Ann.  658,  12 

Paul  v.  Lawton,  61  Minn.  537 ;  State  So.  841. 

v.  McMahon,  69  Minn.  265,  72  N.  W.  48  Rich  v.  City  of  Naperville,  42 

79.      (Requirement    that    a    "per-  111.  App.  222. 
mit"  shall  be  obtained  before  re- 


§  169]  VALIDITY  OF   ORDINANCES.  167 

beating  drums  or  other  musical  instruments,  or  doing  any  other 
act  designed  or  calculated  to  attract  an  unusual  crowd,  without 
the  written  consent  of  the  mayor,  is  invalid  because  not  fixing 
uniform  and  impartial  conditions  and  because  improperly  dele- 
gating power.49  Where  an  ordinance  prohibited  dairies  within 
certain  designated  limits  without  the  consent  of  the  city  council, 
the  court  said : 50  ' '  The  discretion  vested  in  the  city  council  by 
the  ordinance  is  in  no  way  regulated  or  controlled.  There  are  no 
conditions  prescribed  upon  which  permission  may  be  granted. 
It  is  within  the  power  of  the  city  council  to  grant  the  privilege 
to  some  and  deny  it  to  others.  The  discretion  vested  in  the  coun- 
cil is  purely  arbitrary  and  may  be  exercised  in  the  interest  of 
the  favored  few.  It  may  be  controlled  by  partisan  considerations, 
race  prejudices  or  personal  animosities.  It  lays  down  no  rules 
by  which  its  impartial  execution  can  be  secured. ' ' 

*»  Anderson  v.  City  of  Welling-        so  State  v.  Mahner,  43  La.  Ann. 
ton,  40  Kan.  173,  2  L.  R.  A.  110.          496,  9  So.  840. 


CHAPTER  XV. 


GOVERNING  BODIES.  OFFICES  AND  AGENTS. 


i  170.  Distribution  of  powers. 

171.  The  corporate  meeting. 

172.  Notice  of  corporate  meetings. 

173.  The  common  council. 

174.  Place  of  meeting. 

175.  Majority  and  quorum. 
17G.  Motives  of  members. 

177.  Interest  of  members. 

178.  Control  by  the  courts. 

179.  Who  are  officers. 

ISO.  Election  and  appointment. 

181.  Qualifications. 

182.  Conditions  precedent  to  en- 

tering upon  an  office. 

183.  Fiduciary  position  of  public 

officers. 

184.  Incompatible  offices. 

185.  Illustrations. 

186.  Officers  de  facto. 

187.  Officers  de  facto — Continued. 

188.  Compensation. 


§  189.  Compensation — De  facto  offi- 
cers. 

190.  Increase    of    salary — Misde- 

meanor. 

191.  Compensation   of   employees 

— Attorneys. 

192.  The  mayor. 

193.  Holding   over   after   expira- 

tion of  term. 

194.  Resignation. 

195.  Removal — Elective  officers. 

196.  R  e  ni  o  v  a  1 — Appointive  offi- 

cers ;  indefinite  term. 

197.  R  e  m  o  v  a  1 — Appointive  offi- 

cers ;  fixed  term. 

198.  Removal — Right  to  hearing. 

199.  Removal — Judicial  review. 

200.  Manner  of  trying  title  to  an 

office. 


§  170.  Distribution  of  powers. — The  nature  of  a  corporation 
is  such  that  it  must  necessarily  exercise  its  powers  through  some 
representative  or  agent.  Under  the  town-meeting  system  there 
must  be  administrative  and  executive  officers  to  carry  into  effect 
the  expressed  will  of  the  general  body.  Under  the  representative 
system  the  city  council  and  various  officers  act  as  the  agents  of 
the  corporation.  In  a  wide  sense  the  council  represents  the  cor- 
poration ;  early  charters  incorporated  the  mayor  and  the  members 
of  the  council  instead  of  the  people  of  a  particular  locality.  The 
distribution  of  powers  and  duties  among  the  various  boards  and 
officers  is  made  by  the  charter  of  a  corporation.  It  also  deter- 
mines the  constitution  of  the  council  and  the  manner  of  its  or- 
ganization. In  some  cities  large  powers  are  vested  in  boards 
which  act  under  the  general  supervision  of  the  council.  These 


168 


§  171]  GOVERNING   BODIES,   OFFICERS   AND  AGENTS.  169 

boards,  however,  are  often  distinct  public  corporations  charged 
with  a  portion  of  local  administration,  and  possessed  of  the 
power  to  pass  by-laws  which  have  the  effect  of  municipal  ordi- 
nances. Thus,  the  public  schools,  the  park  system  and  the  gen- 
eral subject  of  the  public  health  are  commonly  placed  under  the 
control  of  subordinate  or  independent  corporations  known  as 
school  boards,  park  boards  and  boards  of  health. 

§  171.  The  corporate  meeting. — The  affairs  of  a  corporation 
must  be  transacted  at  a  meeting  of  the  corporate  body.1  Under 
the  town-meeting  system  this  means  a  meeting  of  the  qualified 
inhabitants  of  the  corporation.  But  the  business  of  the  ordinary 
municipal  corporation  is  transacted  by  a  select  or  representative 
body  called  a  council.  Its  members  are  elected  by  the  qualified 
electors  of  the  corporation  at  an  election  duly  called  for  that 
purpose.  Under  this  system  the  electors  have  no  power  except 
when  specially  given  by  statute  to  bind  the  corporation  at  a  pub- 
lic election  or  general  meeting.  They  can  act  only  through  their 
legally  constituted  representatives.  The  composition  of  these 
representative  or  corporate  meetings  is  generally  provided  for 
by  statute.  At  common  law  a  valid  meeting  required  the  pres- 
ence of  the  mayor  or  other  head  officer,  a  majority  of  the  members 
of  each  select  or  definite  class,  and  some  members  of  the  indefi- 
nite body  usually  called  the  commonalty,  or  of  each  of  the  in- 
definite classes  if  there  were  more  than  one.  If  there  was  no  in- 
definite class  and  the  governing  body  consisted  of  a  select  class 
or  of  more  than  one  select  class,  a  majority  of  each  select  class 
must  be  present. 

§  172.  Notice  of  corporate  meetings. — Where  the  time  and 
place  of  regular  meetings  are  fixed  by  charter  or  by  a  valid  or- 
dinance, it  is  not  necessary  that  special  notice  thereof  be  given 
members  to  enable  the  body  to  transact  ordinary  and  prescribed 
business.  If,  however,  it  is  intended  to  transact  special  business, 
or  if  a  meeting  is  to  be  held  at  any  other  time  or  place,  it  is 
necessary  that  special  notice  be  served  upon  each  member,  desig- 

i  Dey  v.  Jersey  City,  19  N.  J.  Eq.  meeting,  to  which  (unless  there  is 

412.    In  vol.  7,  Eng.  Rul.  Gas.  337,  a  fixed  time  of  meeting)  all  the  cor- 

the  rule  is  thus  stated :  "At  com-  porators  must  be  summoned,  and  if 

mon  law,  and  in  the  absence  of  spe-  the  corporation  consists  of  a  defi- 

cial  contract,  the  acts  of  a  corpora-  nite  number  the  major  part  must 

tion  are  those  of  a  duly-constituted  attend." 


170  PUBLIC   CORPORATIONS.  [§  173 

nating  the  time,  and  the  place  if  other  than  the  regular  place  of 
meeting,  and  the  general  character  of  the  business  to  be  trans- 
acted.2 The  notice  must  be  given  by  some  one  having  authority 
to  call  the  meeting.  Generally,  however,  notice  is  waived  by  the 
(presence  and  consent  or  acquiescence  of  every  one  entitled  to  re- 
ceive the  notice.3 

Charter  provisions  with  reference  to  notice  of  meeting  must  of 
course  govern  in  all  cases.  Such  provisions  with  reference  to 
the  calling  of  town  meetings  are  strictly  construed.  Thus,  it 
is  intimated  in  respect  to  New  England  towns,  that  notice  is  a 
legal  condition  precedent  to  a  valid  meeting,  and  that  a  de  facto 
meeting  not  duly  warned  or  notified  is  invalid,  although  all  who 
are  entitled  to  notice  attend.4  Such  notice  must  be  sufficient 
to  fairly  indicate  the  object  of  the  meeting  and  the  nature  of  the 
business  to  be  transacted,  and  the  body  cannot  transact  at  the 
meeting  any  other  special  business  than  that  stated  in  the  notice. 

A  notice  which  states  that  certain  business  will  be  considered 
and  ' '  any  other  business  then  thought  proper  by  said  meeting ' ' 
does  not  admit  of  the  transaction  of  any  other  business  than 
that  specifically  stated.5 

§  173.    The  common  council. — The  common  council  is  the 

most  important  of  the  agencies  through  which  municipal  corpora- 
tions act.  It  exercises  legislative  power  and  controls  the  general 
policy  of  the  municipality.6  Its  constitution,  its  powers,  meetings 
and  procedure  are  ordinarily  determined  by  the  city  charter.  It 
can  act  only  as  a  body,  at  a  regularly  called  meeting.7  Under 
one  form  of  organization  the  council  has  extensive  administrative 
power,  makes  contracts,  appoints  officials,  and  is  the  general  ad- 
ministrative as  well  as  governing  body.  Under  another  form  its 
duties  are  purely  legislative,  and  the  work  of  administration  is 

sShugars   v.   Hamilton,   29   Ky.  School  District,   2  Cush.    (Mass.) 

Law,  127,  92  S.  W.  564.  419 ;  Stow  v.  Wyse,  7  Conn.  214,  18 

a  Lord  v.  Anoka,  36  Minn.  176.  Am.  Dec.  99. 

But  the  mere  attendance  of  and  5  Hayden  v.  Noyes,  5  Conn.  391. 

waiver  by  a  quorum  is  not  suffi-  «  Central  Bridge  Corp.  v.  Lowell, 

cient.     Every  member  has  a  right  15  Gray  (Mass.),  106,  116,  note, 

to   be  notified.     Beaver   Creek   v.  i  Dey  v.  Jersey  City,  19  N.  J.  Eq. 

Hastings,  52  Mich.  528.  412.    As  to  the  manner  in  which  a 

4  Bloomfield     v.     Charter     Oak  board  of  police  must  act,  see  Balti- 

Bank,  121  U.  S.  121,  130 ;  Sherwin  more  v.  Poultney,  25  Md.  18. 
v.  Bugbee,  17  Vt.  337 ;  Hay  ward  v. 


§  174]  GOVERNING  BODIES,  OFFICERS   AND  AGENTS.  171 

largely  left  to  officers  elected  by  the  people  for  that  purpose. 
The  common  form  is  a  single  body  with  a  membership  deter- 
mined by  the  charter  and  elected  by  the  people  from  denned 
districts  within  the  municipality.  The  mayor  is  sometimes  the 
presiding  officer  of  the  council ;  but  more  commonly  the  council 
elects  its  own  officers.8  The  right  of  the  mayor  under  a  charter 
provision  to  preside  over  the  council  is  a  right  to  a  public  office 
which  may  be  tested  by  quo  warranto  but  not  by  a  bill  in  chan- 
cery to  enjoin.9  When  legislative  power  is  vested  in  the  "mayor 
and  aldermen"  the  council  cannot  legislate  without  the  mayor. 
Under  the  early  English  system  the  mayor  was  an  integral  part 
of  the  council  and  no  business  could  be  transacted  in  his  ab- 
sence. Hence  all  business  could  be  stopped  by  the  wrongful 
withdrawal  of  one  of  the  constituent  parts  of  the  body.10  But 
this  rule  has  no  application  to  public  corporations  in  this  coun- 
try.11 The  mayor  cannot  adjourn  a  council  beyond  a  time  at 
which  the  law  requires  a  certain  city  official  to  be  elected.12 

§  174.  Place  of  meetings. — The  validity  of  corporate  acts  or 
the  action  of  municipal  officials  may  depend  upon  whether  the 
action  was  taken  at  the  place  designated  by  the  statute.  Thus, 
a  law  requiring  boards  of  supervisors  to  meet  "at  the  court- 
house" was  not  complied  with  by  a  meeting  held  in  a  building 
near  the  court-house,  which  opened  into  the  court-house  inclosure 
and  was  used  as  an  office  by  the  clerk  and  sheriff.13  A  statute 
requiring  a  town  meeting  to  be  held  in  the  ' '  school-house ' '  means 
within  the  walls  of  the  school-house.14 

§175.  Quorum  and  majority. — A  quorum  is  "the  number 
of  members  of  any  constituted  body  of  persons  whose  presence 

»  State  v.  Kiichli,  53  Minn.  147, 19        12  Tillman  v.  Otter,  93  Ky.  600, 

L.  R.  A.  779.    Power  of  legislative  20  S.  W.  1036,  29  L.  R.  A.  110. 
assembly  to  remove  speaker,  see  In        is  Harris  v.  State,  72  Miss.  960, 

re  Speakership,  15  Colo.  500,  11  L.  33  L.  R.  A.  85.  See  Shugars  v.  Ham- 

R.  A.  240.  ilton,  29  Ky.  Law,  127. 

»  Cochran  v.  McCleary,  22  Iowa,         i*  Chamberlain  v.  Dover,  13  Me. 

75  (Dillon,  J.)  ;  In  re  Sawyer,  124  466,  29  Am.  Dec.  517.    For  further 

U.  S.  200   (Gray,  J.,  citing  many  illustrations,  see  Hall  v.  Ray,  40  Vt. 

cases).  576,  94  Am.  Dec.  440;   Moody  v. 

10  King  v.  Williams,  2  Maule  &  Moeller,  72  Tex.  635;  Marion  Co. 

Sel.  141.  Com'rs  v.  Barker,  25  Kan.  258,  and 

"Martindale  v.  Palmer,  52  Ind.  cases   cited  in  note  to  Harris  v. 

411 ;  Kimball  v.  Marshall,  44  N.  H.  State,  33  L.  R.  A.  85. 
465. 


172  PUBLIC   CORPORATIONS.  [§  175 

at  or  participation  in  a  meeting  is  required  to  render  its  proceed- 
ings valid  or  to  enable  it  to  transact  business  legally."  15  The 
number  required  is  usually  fixed  by  special  provision. 

In  the  absence  of  special  provision,  the  nature  of  the  body  or 
assembly  is  material  in  determining  what  number  is  a  quorum. 
In  indefinite  bodies — bodies  whose  numbers  are  unfixed  and 
changing,  such  as  the  electorate  at  large  or  the  inhabitants  of  a 
town — there  is  no  implied  or  common  law  requirement  that  a 
particular  number  shall  attend.  If  the  election  or  the  meeting 
has  been  properly  notified,  any  number  present  may  do  business 
by  majority  or  plurality  vote,  as  the  case  may  be.16  And  a  ma- 
jority of  such  a  body  sufficient  to  carry  an  act  is  a  majority  of 
those  voting ;  any  members  present  who  do  not  vote  are  deemed 
to  acquiesce  in  the  action  of  the  others.17 

Among  select  bodies  of  a  definite  number,  wielding  power  in 
a  fiduciary  capacity — such  as  city  councils,  boards  and  com- 
mittees— there  is,  in  the  absence  of  express  statutory  provision, 
an  implied  or  common  law  rule  which  requires  that  a  majority 
of  the  body  be  present  to  enable  business  to  be  done;  though  a 
number  less  than  a  majority,  if  properly  met,  may  adjourn  till 
another  date.18 

Furthermore,  the  body  has  no  power  to  alter  the  number,  even 
though,  as  in  the  case  of  a  city  council,  it  is  empowered  to  adopt 
rules  of  procedure.19  To  carry  a  measure  in  such  bodies  it  is  not 
necessary  that  a  majority  of  all  the  members  elected  vote  in  favor 
thereof;  a  majority  of  those  present  is  sufficient,  even  though 
there  be  only  a  bare  quorum  and  as  a  result  a  minority  of  the  en- 
tire body  is  permitted  to  bind  the  whole.  Thus,  if  a  council 
consists  of  twelve  members,  seven  are  a  quorum,  and  that  num- 

15  Century  Dictionary,  "Quorum."  is  United  States  v.  Ballin,  144  U. 

i«  State  v.  Binder,  38  Mo.  450;  S.  1;  Ex  parte  Willcocks,  7  Com. 

see  note  to  Lawrence  v.  Ingersoll,  402 ;  Damon  v.  Granby,  2  Pick.  345 ; 

6  L.  R.  A.  309.  Barnett  v.   Paterson,  48  N.  J.  L. 

17  State  v.  Binder,  supra.     The  395,  6  Atl.  15 ;  Heiskell  v.  Balti- 

words  "a  majority  oZ  such  electors"  more,  65  Md.  125,  4  Atl.  116,  57  Am. 

in   a   constitutional   provision  au-  Rep.  308;  Cushing,  Legislative  As- 

thorizing  a  vote  of  the  electorate  semblies,  §247. 

upon  proposals  to  change  county  i»  Heiskell  v.  Baltimore,  65  Md. 

seats,   mean  a  majority   of  those  125,  57  Am.  Rep.  308,  4  Atl.  116; 

voting  at  the  election.    Everett  v.  see,  also,  Zeiler  v.  Central  R.  Co., 

Smith,  22  Minn.  53.  84  Md.  304,  34  L.  R.  A.  469. 


§175] 


GOVERNING  BODIES,   OFFICERS  AND  AGENTS. 


173 


ber  being  present  four  votes  for  or  against  a  measure  will  con- 
clude the  council.20 

Some  confusion  and  conflict  have  arisen  on  the  question 
whether,  when  some  members  present  in  a  meeting  of  a  select 
body  refrain  from  voting,  the  majority  whose  vote  in  favor 
of  a  measure  will  carry  it  is  a  majority  of  the  number  which  will 
constitute  a  quorum,  or  a  majority  of  the  number  present.  By 
some  decisions  a  majority  of  a  quorum  is  sufficient,  on  the  ground 
that  those  who  do  not  vote  must  be  taken  to  acquiesce  in  the 
action  of  those  who  do.21  By  other  decisions  a  majority  of  those 
present  must  concur,  on  the  ground  that  those  who  will  not  favor 
a  measure  must  be  taken  to  oppose  it.22  And  this  is  indirectly 
the  effect  of  a  decision  that  where  a  council  consists  of  eight  mem- 
bers and  the  mayor  has  a  casting  vote  in  case  of  a  tie,  if  four  vote 
in  the  affirmative  and  four  refuse  to  vote  the  mayor  may  cast  a  de- 
ciding ballot.23 

Authority  to  remove  an  officer  by  a  two-thirds  vote  "of  the 
council,"  has  been  held  to  mean  a  two-thirds  vote  of  those  pres- 
ent at  a  valid  meeting.24 


205  Dane's  Abr.  150;  Buell  v. 
Buckingham,  16  la.  284;  Brown  v. 
District  of  Columbia,  127  TJ.  S.  579. 

21  State  v.  Green,  37  Oh.  St.  227 ; 
Rushville  Gas  Co.  v.  Rushville,  121 
Ind.  206,  23  N.  E.  72,  6  L.  R.  A. 
315.  In  this  case  the  court  said: 
"The  mere  presence  of  inactive 
members  does  not  impair  the  right 
of  the  majority  of  the  quorum  to 
proceed  with  the  business  of  the 
body.  If  members  present  desire 
to  defeat  a  measure  they  must 
vote  against  it,  for  inaction  will 
not  accomplish  their  purpose. 
Their  silence  is  acquiescence,  rath- 
er than  opposition.  Their  refusal 
to  vote  is,  in  effect,  a  declaration 
that  they  consent  that  the  major- 
ity of  the  quorum  may  act  for  the 
body  of  which  they  are  members." 

The  case  was  followed  in  State 
v.  Dillon,  125  Ind.  65,  25  N.  E.  136. 
In  Attorney  General  v.  Shepard, 
G2  N.  H.  383,  it  was  held  that  a 


majority  of  tJie  votes  cast  is  suf- 
ficient in  a  board  of  aldermen. 

22  Lawrence  v.  Ingersoll,  88 
Tenn.  52,  6  L.  R.  A.  309;  Barnett 
v.  Paterson,  48  N.  J.  L.  395 ;  1  Dil- 
lon, Municipal  Corporations  (4th 
ed.)(  §§278,  279,  282.  The  court 
in  Rusbville  Gas  Co.  v.  Rushville, 
supra,  seems  to  have  misunder- 
stood Judge  Dillon's  text.  In  the 
fourth  edition  at  page  369,  that 
learned  author,  after  noting  the 
decision  and  stating  the  rule 
adopted  by  the  court,  says:  "It 
deserves  further  consideration 
whether  this  result  is  consistent 
with  the  majority  rule  applicable 
to  definite  bodies."  His  text  in 
§  2S2  seems  to  be  contrary  to  the 
court's  conclusion. 

saLauntz  v.  People,  113  111.  137, 
55  Am.  Rep.  405. 

24  Warnock  v.  La  Fayette,  4  La. 
Ann.  419. 


174  PUBLIC   CORPORATIONS.  [  §  176 

§  176.  Motives  of  members. — The  courts  have  no  power  to 
inquire  into  the  motives  of  members  of  the  legislature  which 
enacted  a  law.25  This  principle  applies  as  well  to  a  city  council 
as  to  a  state  legislature.26  But  notwithstanding  this  the  courts  will 
not  sustain  an  ordinance  the  enactment  of  which  was  procured 
by  fraud  and  bribery.27  As  said  by  Judge  Dillon :28  "It  would  be 
disastrous  to  apply  the  analogy  to  its  full  extent.  Municipal 
bodies,  like  the  directories  of  private  corporations,  have  too  often 
shown  themselves  capable  of  using  their  powers  fraudulently 
for  their  own  advantage  or  to  the  injury  of  others.  We  suppose 
it  to  be  a  sound  proposition  that  their  acts,  whether  in  the  form 
of  resolutions  or  ordinances,  may  be  impeached  for  fraud  at  the 
instance  of  persons  injured  thereby." 

§  177.  Interest  of  members. — A  general  principle  similar  to 
that  which  invalidates  a  transaction  by  an  agent  or  a  trustee 
in  which  he  has  an  interest  adverse  to  his  principal  or  cestui  que 
trust,  applies  to  public  officers  in  general,29  and  therefore  to  mem- 
bers of  a  board  or  council  while  exercising  official  discretion  on 
behalf  of  the  public  or  of  a  public  corporation ;  and  invalidates 
any  affirmative  action  by  such  a  body  which  rests  upon  the  con- 
currence of  a  member  who  is  adversely  interested  in  the  mat- 
ter concerned.  Thus,  where  the  legislature  permitted  a  board 
of  three  trustees  of  a  city  to  select  and  convey  public  lands  to  a 
railroad  company  as  a  donation,  and  one  member  was  opposed  to 
any  grant,  a  deed  executed  by  the  other  two  was  held  invalid 
upon  proof  that  one  of  the  two  was  a  shareholder  and  director 

2»Cooley,  Const.  Lim.  (7th  ed.),  standing  the  fraud,  and  in  such 

§257;  Wright  v.  Defrees,  8  Ind.  case  the  third  party  will  be  bound. 

298.  And  this  is  so  even  if  the  prin- 

ze  Buell  v.  Ball,  20  Iowa,  282 ;  cipal  be  a  public  corporation,  as  a 

Freeport  v.  Marks,  59  Pa.  St.  253.  city,  since  the  contract  is  neither 

27  State  v.  Cin.  Gas  Co.,  18  Ohio  malum  in  se  nor  malum  prohibi- 
St.  262.  turn,  but  one  which  the  city  injght 

28  Dillon,  Mun.  Corp.   (4th  ed.) ,  have  made.     And  after  such  elec- 
I,  §311.  tion  it  may  sue  the   third  party 

29  Infra,    §  183 ;   Scott  v.   School  for  fraud,  and  the  agent  for  money 
Dist  67  Vt.  150,  31  Atl.  145 ;  Find-  had  and  received  to  its  ase."  Huff- 
lay  v.  Pertz,  66  Fed.  427.    "But  the  cut,  Agency,  148 ;  citing  Findlay  v. 
principal    may   elect   to   take   the  Pertz,  supra;  Mayor  v.  Lever,  1891, 
benefit    of    the    contract   notwith-  12  B,  168. 


177] 


GOVERNING  BODIES,   OFFICERS   AND  AGENTS. 


175 


of  the  railroad  company.30  By  the  weight  of  authority,  the 
action  is  valid,  however,  if  a  majority  or  other  requisite  number 
participate  in  the  affirmative  vote  exclusive  of  all  interested 
members,  provided  that  no  actual  fraud  or  improper  influence 
is  shown.31  Slight  evidence  of  fraud  or  collusion  will  suffice  to 
overturn  the  transaction. 

But  many  courts  have  adopted  a  much  stricter  doctrine  than 
this ;  namely,  that  no  transaction  or  vote  is  valid  if  any  member 
is  interested  adversely  to  the  corporation  in  favor  of  accomplish- 
ing it.  It  is  said  that  the  influence  and  interest  of  such  a  mem- 
ber must  necessarily  affect  the  others,  and  further  that  the 
corporation  or  the  public  is  entitled  to  the  disinterested  counsel 
and  judgment  of  all.32 


30  San  Diego  v.  San  Diego,  etc. 
R.  Co.,  44  Cal.  106 ;  Rider  v.  Ports- 
mouth, 67  N.  H.  298,  38  Atl.  385; 
McFarland  v.  Gordon,  70  Vt.  455, 
41  Atl.  507.  Many  states  have  stat- 
utory provisions,  some  imposing  a 
criminal  penalty,  which  confirm 
this  rule,  or  state  a  similar  one. 

sijunkins  v.  School  District,  39 
Me.  220;  Tucker  v.  Howard,  122 
Mass.  529. 

32  People  v.  Township  Bd.,  11 
Mich.  222 ;  (but  see  Niles  v.  Muzzy, 
33  Mich.  61) ;  Cumberland  Coal  Co. 
v.  Sherman,  30  Barb.  553;  Pickett 
v.  School  District,  25  Wis.  551; 
Pratt  v.  Luther,  45  Ind.  250;  Fort 
Wayne  v.  Rosenthal,  75  Ind.  157; 
Mayor  v.  Huff,  60  Ga.  221.  In  Peo- 
ple v.  Township  Bd.,  supra,  Chris- 
tiancy,  J.,  said: 

"The  fact  that  those  contractors 
did  not  constitute  a  majority  of  the 
joint  boards  of  the  several  town- 
ships *  *  *  I  do  not  regard 
as  in  any  respect  altering  the  prin- 
ciple; nor  the  fact  that  the  con- 
tract was  let  to  the  lowest  bidder. 
The  price  alone  is  but  one  element 
embraced  in  the  question,  and  even 
this  might  be  affected  by  their  in- 
fluence, by  fixing  the  time  and 


place  of  the  letting,  by  their  right 
to  decide  upon  the  responsibility  of 
the  bidders,  and  by  many  other  cir- 
cumstances, over  which,  as  mem- 
bers of  the  board,  they  might  ex- 
ercise an  influence.  But,  the  plan 
of  the  work,  the  materials  to  be 
used,  and  the  mode  and  time  of 
completion,  might  all  be  influenced 
by  the  individual  interests  of  these 
men,  and  determined,  in  a  way 
which  would  effectually  exclude  a 
fair  competition  in  bidding.  And, 
they  would,  of  course,  have  a  voice 
in  determining  upon  the  mode  in 
which  the  work  was  afterwards 
done  under  the  contract,  and  its 
acceptance.  In  all  these  matters, 
the  influence  of  these  contractors 
would  not  only  be  given  by  their 
own  votes,  but,  as  all  the  members 
must  be  supposed  to  be  more  or 
less  influenced  by  them,  though 
but  a  minority,  they  may  deter- 
mine the  majority ;  and,  it  is  mani- 
festly impossible,  from  the  nature 
of  the  case,  to  ascertain  and  meas- 
ure the  amount  of  their  influence 
upon  the  board,  or  in  what  man- 
ner it  may  have  affected  the  ac- 
tion of  the  other  members,  or  what 
would  have  been  the  determination 


176  PUBLIC   CORPORATIONS.  [  §  178 

The  interest  which  will  disqualify  a  member  from  taking  part 
in  the  proceedings  or  will  render  the  transaction  invalid  is  an  op- 
posing pecuniary  interest  directly  in  the  matter  itself.  Thus,  the 
indirect  benefit  to  a  member  as  a  property  owner  from  a  particu- 
lar public  improvement  will  not  affect  a  vote  in  favor  thereof.33 

There  is  some  diversity  of  judicial  opinion  as  to  whether  the 
value  of  services  rendered,  or  property  furnished,  under  a  con- 
tract which  is  void  on  the  above  principle,  can  be  recovered  as 
upon  a  quantum  meruit.  34 

§  178.  Control  by  the  courts. — The  acts  of  a  municipal  coun- 
cil or  board,  like  those  of  other  governmental  agencies,  are  sub- 
ject 'to  review  by  the  courts  for  irregularity  and  for  excess  of 
power.  Where  a  discretion  has  been  lodged  in  a  council  or 
board,  a  court  must  not  substitute  its  judgment  for  that  of  the 
officers  in  whom  the  discretion  is  vested.  But  the  rule  is  limited 
by  the  restriction  that  the  discretion  must  be  exercised  within  its 
proper  limits  for  the  purposes  for  which  it  is  given.35  An  exercise 
of  the  authority  may  be  so  unreasonable  as  to  be  deemed  to  be 
outside  of  the  intent  of  the  authorizing  statute.  Thus,  where 
power  is  given  to  a  board  of  supervisors  to  fix  water  rates,  it 
is  intended  that  the  rate  of  compensation  fixed  shall  be  reasonable 
and  just,  and  if  the  rates  are  fixed  so  low  as  to  amount  to  prac- 
tical confiscation  of  the  property  of  the  water  company  the  court 
will  provide  a  remedy.36.  A  court  of  equity  will  not  interfere 
or  revise  the  discretion  and  judgment  of  a  common  council  as  to 
the  place  and  manner  of  the  erection  of  a  public  building.37 
Such  questions  necessarily  require  the  exercise  of  discretion  and 

of  the  majority  without  that  in-  46   Kas.   634;    Goff   v.   Nolan,   10 

fluence ;    the   members   themselves  How.     Pr.     323 ;     Dorchester     v. 

could  neither  state  nor  know  it.  Toungman,  60  N.  H.  385. 

And,    though    these    contractors  34  See  Concordia  v.  Hagaman,  1 

may,    as    members    of    the   board,  Kas.    App.    35,    and    cases    cited; 

have    acted    honestly,    and    solely  Mayor  v.  Huff,  CO  Ga.  221. 

with  reference  to  the  public  inter-  35  Davis  v.  Mayor  of  New  York, 

est,  yet  if  they  have  acted  other-  1  Duer,  451 ;  People  v.  Sturtevant, 

wise,  they  occupy  a  position  which  9  N.  Y.  263,  59  Am.  Dec.  536. 

puts  it  in  their  power  to  conceal  36  Spring  Valley  W.  W.   v.   San 

the  evidence  of  the  facts,  and  to  Francisco,  82  Cal.  286,  22  Pac.  910, 

defy  detection."  1046,  16  Am.  St.  116. 

ss  Steckert    v.    E.    Saginaw,   22  37  Kendall   v.  Frey,  74  Wis.  26, 

Mich.  104 ;  Coles  v.  Williamsburg,  42  N.  W.  468,  17  Am.  St.  118. 
10  Wend.  659 ;  Topeka  v.  Huntoon, 


§  179]  GOVERNING  BODIES,   OFFICERS  AND  AGENTS.  177 

judgment  by  the  council.  Where  a  board  of  aldermen  is  made 
the  sole  judge  of  the  qualification,  election  and  return  of  its  own 
members,  its  decision,  if  made  regularly,  is  not  subject  to  re- 
vision by  the  courts.38 

Where  a  judgment  or  discretion  of  a  quasi- judicial  nature  is 
vested  in  a  council  or  board,  the  writ  of  certiorari  lies  for  a  judi- 
cial review  of  the  questions  of  jurisdiction  and  regularity  of 
action.  Mandamus  also  may  be  issued  against  such  a  body  to 
compel  performance  of  any  ministerial  duty.  If  a  council  refuses 
to  obey  a  mandamus  ordering  the  payment  of  a  claim,  those 
members  who  voted  against  such  payment  may  be  punished  for 
contempt  of  court.39 

§179.  Who  are  officers. — "A  public  office  is  a  permanent 
trust  to  be  exercised  in  behalf  of  the  government  or  all  citizens 
who  may  need  the  intervention  of  a  public  functionary  or  officer. 
It  means  the  right  to  exercise  generally,  and  in  all  proper  cases, 
the  function  of  a  public  trust  or  employment,  and  to  receive  the 
fees  and  emoluments  belonging  to  it,  and  to  hold  the  place  and 
perform  the  duty  for  the  term  and  by  the  tenure  prescribed  by 
law."  The  incumbent  of  such  an  office  is  a  public  officer.40  But 
as  a  general  rule  it  is  essential  to  the  nature  of  a  public  office  that 
the  duties  be  in  a  sense  continuous,  and  be  prescribed  by  law, 
rather  than  by  contract  or  by  a  superior  officer.  File  clerks, 
janitors,  officers  of  justice  courts  and  the  like,  are  mere  em- 
ployees, and  the  courts  will  not  determine  their  rights  in  quo 


SB  Llnegar  v.  Rittenhouse,  94  111.        so  State  v.  Judge,  38  La.   Ann. 

208 ;  State  v.  Marlowe,  15  Ohio  St.  43,  58  Am.  St.  158 ;  Board  of  Com. 

114 ;    Mayor   v.   Morgan,   7   Mart.  v.  Sellew,  99  U.  S.  624. 
(N.  S.)  1,  18  Am.  Dec.  232.    Some        *o  Henley  v.  Lyme,  5  Bing.  91; 

decisions  have  held  that,  where  a  Ogden  v.  Raymond,  22  Conn.  379, 

body  is  given  authority  to  judge  59  Am.  Dec.  429.    Many  definitions 

of  the  election  and  qualifications  and  authorities  are  cited  in  State 

of  a  member,  a  court  has  a  con-  v.  Spaulding,  102  la.  639,  72  N.  W. 

current  jurisdiction  to  decide  the  288.     See,  also,  many  cases  cited 

question,   unless  the  authority  of  in  note  to  McCornick  v.  Pratt,  8 

the  body  itself  is  expressly  made  Utah,  294,  in  17  L.  R.  A.  243.    See, 

exclusive.    State  v.  Gates,  35  Minn,  also,  State  v.  Kiichli,  53  Minn.  147 ; 

385,  28  N.  W.  927 ;  Com.  v.  Allen,  State  v.  Dillon,  32  Fla.  545,  22  L. 

70  Pa.  St.  465 ;  State  v.  Kempf,  69  R.  A.  124 ;  State  v.  Anderson,  45 

Wis.  470,  34  N.  W.  226,  2  Am.  St  Ohio  St.  196,  12  N.  E.  656. 

753. 

12 


178  PUBLIC   CORPORATIONS.  [§  180 

warranto  proceedings.41  Commissioners  appointed  to  refund  the 
bonded  indebtedness  of  a  township  are  mere  financial  agents  and 
not  public  officers.42  The  president  of  a  city  council  is  not  neces- 
sarily "  an  officer  of  the  city,"  within  the  meaning  of  a  statute 
but  may  be  only  an  officer  or  servant  of  the  council  that  selected 
him.43  The  members  of  the  detective  department  of  the  district 
police  force  are  public  officers  and  not  mere  employees.44  But 
the  question  whether  a  certain  person  is  a  public  officer  or  merely 
an  employee  must  in  many  cases  be  determined  from  an  examina- 
tion of  the  statute  providing  for  the  office  and  prescribing  its 
duties.45 

The  distinction  between  state  and  municipal  officers  will  be 
elsewhere  considered.46  The  question  often  arises  under  the 
provisions  of  law  which  forbid  one  person  holding  more  than  one 
office,  a  state  and  municipal  office,  a  state  and  federal  office,  or 
under  the  common  law  which  forbids  one  person  from  holding 
inconsistent  offices. 

§  180.  Election  and  appointment. — The  manner  in  which 
the  officers  of  public  corporations  are  to  be  elected  or  appointed 
is  always  provided  in  the  charter  or  general  law,  or  in  the  ordi- 
nance when  the  office  is  governed  by  ordinance.  The  members 
of  a  city  council  are  always  elected  by  the  people,  and  this  is 
generally  true  of  the  mayor.  The  treasurer,  comptroller,  attor- 
ney and  members  of  boards  are  sometimes  elected  by  the  people 
and  sometimes  by  the  council.  Subordinate  officers  are  generally 
either  appointed  by  the  mayor  and  confirmed  by  the  council,  or 
elected  by  the  council.  The  power  to  appoint  to  office  is  not  an 
inherent  executive  function.47  The  transfer  from  a  council  to 
the  mayor  ' '  of  all  executive  power  now  vested  by  law  in  the  city 

41  Tralnor  v.  Board  of  Auditors,  in  a  state  university)  Head  v.  Cur- 
89  Mich.  162,  15  L.  R.  A.  95.  ators,  47  Mo.  220.     See  also  Car- 

42  Travelers'  Ins.  Co.  v.  Oswego,  rington   v.   United   States,  208   U. 
59  Fed.  Rep.  58,  7  C.  C.  A.  69.  S.  1 ;  People  v.  Cahill,  188  N.  Y. 

«  State  v.  Kiichli,  53  Minn.  147,  489. 

54  N.  W.  1069.  46  §  259,  et  seq. 

44  Brown  v.   Russell,   166  Mass.  47  FOX  v.  McDonald,  101  Ala.  51, 
14,  43  N.  E.  1005,  33  L.  R.  A.  253.  13  So.  416,  46  Am.  St.  98,  21  L.  R. 

45  (Foreman   of   yard   in   health  A.  529 ;  State  v.  Boucher,  3  N.  Dak. 
department)  Garvey  v.  Lowell,  199  389,  21   L.   R.   A.  539;   People  v. 
Mass.  47;    (physician  in  penal  in-  Freeman,  80  Cal.  233,  22  Pac.  173, 
stitution)    Marshall    v.    111.    State  13  Am.  St.  122,  and  note  on  p.  127. 
Reformatory,  201  111.  9;  (professor 


§  181]  GOVERNING  BODIES,   OFFICERS  AND  AGENTS.  179 

council  or  in  either  branch  thereof"  authorizes  the  mayor  to 
appoint  a  superintendent  of  buildings.48  When  the  power  of 
appointment  is  vested  in  the  mayor  there  is  no  implied  require- 
ment of  confirmation  by  the  council.49  After  having  confirmed 
an  appointment  the  council  cannot  reconsider  its  action  and 
refuse  to  confirm.50  A  council  the  term  of  whose  life  is  one  year 
may  create  and  appoint  to  an  office  the  term  of  which  exceeds 
one  year.51 

§  181.  Qualifications. — The  qualifications  necessary  to  the 
holding  of  an  office  are  determined  by  the  constitution  or  by  the 
statutes  of  the  state,  and  the  possession  of  such  qualifications  is 
as  essential  to  the  right  to  hold  the  office  as  is  appointment  or 
election.52  An  alien  cannot  hold  an  office ;  53  but  a  non-resident 
is  eligible  to  office  unless  the  contrary  is  provided  by  statute.51 
As  a  general  rule  it  is  held  that  women  are  ineligible  to  office 
unless  the  right  is  expressly  conferred  upon  them.55  The  ten- 
dency, however,  is  to  confer  the  right  in  certain  cases;  and, 
under  certain  constitutions  which  are  silent  upon  the  subject, 
the  general  right  has  been  admitted.56  Reasonable  property 
qualifications  may  be  required  by  statute  in  the  absence  of  con- 
stitutional restriction.57  When  the  qualifications  are  fixed  by 
the  constitution,  the  legislature  cannot  impose  others  as  a  condi- 
tion to  the  holding  of  office.58  Qualifications  prescribed  by 
statute  must  concern  the  fitness  of  the  candidate  or  be  calculated 
to  accomplish  some  legitimate  public  purpose ;  for  otherwise  they 
will  operate  as  an  unconstitutional  discrimination.  A  statute 
requiring  members  of  a  police  commission  to  be  members  of  the 

48  Attorney-General    v.   Varnum,  State  v.  George,  23  Fla.  585 ;  State 

167  Mass.  477,  46  N.  E.  1.  v.  Swearingen,  12  Ga.  23.   But  see 

4»  State   v.    Doherty,    16   Wash,  contra  Barre  v.  Greenwich,  1  Pick. 

382,  47  Pac.  958.  129. 

50  State   v.   Wadham,   64   Minn.  55  Bradwell  v.  Illinois,  16  Wall. 

318,    67    N.    W.    64.      Power    to  130;    Robinson's   Case,    131    Mass, 

appoint  court-house  and  city  hall  376 ;  Hough  v.  Cook,  44  Iowa,  639 ; 

commissioners,  see  State  v.  Ermen-  State  v.  Gorton,  33  Minn.  345. 

trout,  63  Minn.  105,  65  N.  W.  251.  66  Jeffries  v.  Harrington,  11  Colo. 

Bi  State  v.  Anderson,  58  N.  J.  L.  191. 

515,  33  Atl.  846.  87  Darrow  v.  People,  8  Colo.  417. 

szNanson  v.  Grizzard,  96  N.  C.  BS  McCrary,      Elections,      §312; 

293.  Barker  v.  People,  3  Cowan  (N.  Y.), 

53  State  v.  Smith,  14  Wis.  497.  685,  15  Am.  Dec.  322. 

s*  Com.  v.  Jones,  12  Pa.  St.  365 ; 


180 


PUBLIC   CORPORATIONS. 


[§181 


party  having  the  highest  or  next  highest  representation  in  the 
common  council  was  held  unconstitutional.59  But  a  statute 
which  provided  that  members  of  a  police  board  should  be  ap- 
pointed from  the  members  of  the  two  largest  political  parties  of 
the  city  was  held  constitutional.60  A  statute  assuming  to  grant 
special  privileges  to  freeholders  in  addition  to  those  granted  by 
the  constitution  is  class  legislation  and  void.61  A  number  of 
statutes  have  been  enacted  which  provide  that  veterans  shall  be 
given  the  preference  over  other  citizens  in  the  matter  of  ap- 
pointment to  office.  Such  statutes  are  probably  valid  when 
applied  to  mere  employes,  and  invalid  when  applied  to  public 
officers.62 


"Rathbone  v.  Wirth,  150  N.  Y. 
459,  45  N.  E.  15,  34  L.  R.  A.  403. 

eoComm.  v.  Plaisted,  148  Mass. 
375. 

61  State  v.  Goodville,  30  W.  Va. 
179,  6  L.  R.  A.  621.    In  support  of 
the  proposition  that  the  legislature 
cannot  impose  upon  voters  other 
qualifications  than  those  fixed  by 
the  constitution,  see  Kansas  City 
v.  Whipple,  136  Mo.  475,  38  S.  W. 
295,  35  L.  R.  A.  746;  Stockton  v. 
Powell,  29  Fla.  1,  15  L.  R.  A.  42; 
State  v.  Dillon,  32  Fla.  454,  22  L. 
R.  A.  124;  Buckner  v.  Gordon,  81 
Ky.  665 ;  Short  v.  Maryland,  80  Md. 
392. 

62  Sullivan    v.    Gilroy,    55    Hun 
(N.  Y.),  285;  People  v.  French,  52 
Hun  (N.  Y.),  464;  Opinion  of  Jus- 
tices, 145  Mass.  587;  State  v.  De- 
laney    (N.  J.,   1893),  25  Atl.  946. 
In  Brown  v.  Russell,  166  Mass.  14, 
43  N.  E.  1005,  33  L.  R.  A.  253,  the 
court  said:     "Can  the  legislature 
constitutionally   provide   that   cer- 
tain public  offices  and  employments 
which  it  has  created  shall  be  filled 
by  veterans  in  preferment  to  all 
other   persons,    whether   the   vet- 
erans   are    or    are   not    found    or 
thought  to  be  actually  qualified  to 
perform  the  duties  of  the  offices 
and  employments  by  some  impar- 


tial and  competent  officer  or  board 
charged  with  some  public  duty  in 
making  the  appointments?  If  such 
legislation  is  not  constitutional  as 
regards  public  offices,  the  question 
incidentally  may  arise  whether  a 
distinction  can  be  made  between 
public  offices,  and  employments  by 
the  public  which  are  not  offices. 
Public  offices  are  created  for  the 
purpose  of  effecting  the  ends  for 
which  government  has  been  insti- 
tuted, which  are  the  common  good 
and  not  the  profit,  honor  or  pri- 
vate interest  of  any  man,  family 
or  class  of  men.  In  our  form  of 
government  it  is  fundamental  that 
public  offices  are  a  public  trust, 
and  that  the  persons  to  be  ap- 
pointed should  be  selected  solely 
with  a  view  to  the  public  welfare." 
It  was  held  that  the  members  of 
the  police  force  were  public  officers 
and  that  the  act  was  unconstitu- 
tional. See  State  v.  Miller,  66  Minn. 
90,  68  N.  W.  732  (preference  to  vet- 
erans on  public  works).  In  State  v. 
Barrows,  71  Minn.  178,  37  N.  W. 
Rep.  704,  such  a  statute  was  con- 
strued, but  its  constitutionality  was 
not  questioned.  See  note  to  Louis- 
ville, etc.  Co.  v.  N.  R.  Co.,  14  L.  R. 
A.  579,  for  cases  on  equality  of 
privileges,  etc. 


§  182]  GOVERNING   BODIES,   OFFICERS   AND   AGENTS.  181 

§  182.    Conditions  precedent  to  entering  upon  an  office. — An 

office  must  be  accepted,  but  no  particular  form  of  acceptance  is 
necessary.  The  mere  entering  upon  the  office  is  sufficient.63  At 
common  law  it  was  an  indictable  offense  to  refuse  to  accept  an 
office,  but  for  obvious  reasons  this  rule  has  become  of  little  im- 
portance.64 When  the  taking  of  an  oath  is  made  a  condition 
precedent  to  admission  to  an  office  the  officer  possesses  no  rights 
until  this  requirement  is  complied  with.65  But  a  failure  to  take 
the  oath  within  the  time  fixed  by  law  does  not  ipso  facto  create 
a  vacancy.  He  may  take  the  oath  at  any  time  before  any  steps 
are  taken  to  have  a  vacancy  declared.66  The  form  of  oath  is 
ordinarily  prescribed,  and  must  be  substantially  followed.67  The 
filing  of  a  bond  with  sufficient  sureties  is  almost  universally  made 
a  condition  precedent  to  the  right  to  enter  upon  an  office  which 
requires  the  care  and  custody  of  money  or  property.  Unless  the 
statute  makes  the  filing  of  a  bond  within  a  designated  time  a 
condition  precedent  to  the  right  to  the  office,  the  failure  to  file 
within  such  time  will  not  work  a  forfeiture  of  the  right  or  create 
a  vacancy.  In  such  case  the  officer  may  file  his  bond  after  he 
has  entered  upon  the  duties  of  the  office.68 

In  some  states  it  is  held  that  one  who  can  qualify  at  the  time 
when  called  upon  to  assume  the  duties  of  an  office  is  eligible  to 
the  office  although  he  was  under  some  disability  on  the  day  of 
election.  This,  on  the  theory  that  "it  is  an  eligible  officer  the 
law  requires,  and  any  person  who  can  qualify  himself  to  take  and 
hold  the  office  is  eligible  at  the  time  of  the  election."69  This 
rule  is  adopted  by  congress  with  reference  to  the  qualifications 

es  Smith  v.  Moore,  90  Ind.  294.  Scott,  53  Neb.  176,  73  N.  W.  681. 

e*  See  Hinze  v.   People,   92   111.  See,  also,  note  to  Com.  v.  Johnson, 

406.  19  Am.  St.  96.     As  to  the  right  of 

es  People  v.  McKinney,  52  N.  Y.  a  comptroller  to  refuse  to  approve 

374.  the  bond  of  an  officer,  see  State  v. 

ee  State  v.  Ruff,  4  Wash.  234,  16  Shannon,  132  Mo.  139. 
L.  R.  A.  140.  69  state  v.  Van  Beek,  87  Iowa, 

67  Davis  v.  Berger,  54  Mich.  692 ;  569,    19    L.    R.    A.    622 ;    State   v. 

Olney  v.  Pierce,  1  R.  I.  292;  State  Smith,     14     Wis.    497;     State    v. 

v.  Trenton,  35  N.  J.  L.  485.  Trumpf,    50    Wis.    103 ;    Privet   v. 

es  Knox     Co.     v.     Johnson,     124  Bickford,  26  Kan.  53,  40  Am.  Rep. 

Ind.  145,  7  L.  R.  A.  684,  and  cases  301 ;  State  v.  Murray,  29  Wis.  96, 

cited  in  decision ;  Launtz  v.  People,  9  Am.  Rep.  489 ;  Vogel  v.  State, 

113  111.  137.    Many  authorities  are  107  Ind.  374. 
reviewed  and  cited  in  Holt  Co.  v. 


182 


PUBLIC   CORPORATIONS. 


[§182 


of  its  members.70  But  the  stronger  reasons  appear  to  be  with  the 
courts  which  hold  that  the  person  must  be  eligible  at  the  time  of 
his  election  as  well  as  at  the  time  of  entering  upon  the  office.71 
When  the  constitution  imposes  a  disability  upon  a  member  of 
the  legislature  ' '  during  the  time  for  which  he  is  elected ' '  to  hold 
any  office,  the  disability  continues  until  the  expiration  of  the 
full  period  for  which  he  was  elected,  notwithstanding  his  resig- 
nation as  a  member  of  the  legislature.72 

§183.    Fiduciary    position    of    public    officers. — A    public 
officer  stands  in  a  relation  of  trust  and  confidence.    His  position 


TO  Gushing,  Law  and  Prac.  Leg. 
Ass.,  p.  79;  McCrary,  Elections, 
§311. 

TI  State  v.  Williams,  99  Mo.  291, 
12  S.  W.  905;  Taylor  v.  Sullivan, 
45  Minn.  309,  11  L.  R.  A.  272.  In 
State  v.  Moores,  52  Neb.  770,  73 
N.  W.  299,  it  was  held  that  the 
word  "eligible"  relates  to  the  ca- 
pacity to  be  elected  or  chosen  to  an 
office  as  well  as  to  hold  the  office. 
The  court  said :  "To  hold  that  the 
disqualification  has  reference  alone 
to  the  time  of  assuming  the  duties 
of  public  office  is  to  disregard  the 
etymology  of  the  word  'eligible.' 
The  definition  given  it  in  the 
Standard  Dictionary  is :  'Capable 
of  being  chosen ;  qualified  for  se- 
lection or  election ;  fit  for  or  wor- 
thy of  choice  or  adoption.'  The 
word  is  similarly  defined  in  the 
Century  and  other  dictionaries. 
The  term  'eligible,'  as  employed  in 
the  constitution,  should  be  given 
its  plain  and  ordinary  significa- 
tion ;  and,  when  so  construed,  there 
is  no  escaping  the  conclusion  that 
it  means  capable  of  being  elected  or 
chosen.  Neither  the  framers  of 
the  constitution,  nor  the  people  in 
adopting  it,  intended  to  permit  a 
person  to  be  elected  to  a  public 
office  who  at  the  time  was  disqual- 
ified from  entering  upon  the  duties 


thereof,  and  run  the  risk  of  the 
removal  of  the  disability  between 
the  day  of  election  and  the  com- 
mencement of  the  official  term. 
One  who  is  in  default  as  collector 
and  custodian  of  public  money  or 
property  is  disqualified  from  being 
legally  elected  to  any  office  of  profit 
or  trust  under  the  constitution  or 
laws  of  the  state.  This  is  the 
plain  and  natural  construction  of 
the  language  of  the  constitution. 
These  views  find  abundant  sup- 
port in  the  authorities.  See  Terri- 
tory v.  Smith,  3  Minn.  240  (Gil. 
164)  ;  Taylor  v.  Sullivan,  45  Minn. 
309,  47  N.  W.  802 ;  State  v.  Clarke, 
3  Nev.  566;  Searcy  v.  Grow,  15 
Cal.  117;  People  v.  Leonard,  73 
Cal.  230,  14  Pac.  853;  Drew  v. 
Rogers  (Cal.),  34  Pac.  1081;  In  re 
Corliss,  11  R.  I.  638;  Carson  v. 
McPhetridge,  15  Ind.  327;  Jeffries 
v.  Rowe,  63  Ind.  592;  Hill  v.  Ter- 
ritory (Wash.  T.),  7  Pac.  63.  There 
is  a  division  in  the  authorities 
upon  the  subject,  but  the  ones 
cited  above  and  those  in  line 
therewith  are  believed  to  be  sus- 
tained by  the  better  logic."  See 
People  v.  Rodgers,  118  Cal.  393, 
46  Pac.  740,  50  Pac.  668. 

72  State  v.  Sutton,  63  Minn.  147, 
65  N.  W.  262,  30  L.  R.  A.  630. 


§  183]  GOVERNING  BODIES,   OFFICERS   AND  AGENTS.  183 

calls  for  the  application  of  the  rule  which  renders  voidable  a 
transaction  of  an  agent  with  himself,  or  in  which  he  has  an 
interest  adverse  to  his  principal.  A  transaction  by  a  public 
officer  with  himself  or  with  a  partnership  of  which  he  is  a  mem- 
ber, or  in  which  he  seeks  in  any  way  to  make  a  profit  for  himself 
is  invalid ; 73  though  if  it  be  made  as  agent  of  a  public  corporation 
the  latter  may  validate  it  by  consent  or  ratification  if  no  statute 
interferes.74  Statutes  in  many  states  expressly  forbid  that  any 
municipal  officer  shall  be  a  party  to  or  be  directly  or  indirectly 
interested  in  any  contract  or  agreement  of  a  city.  Some  of  these 
statutes  provide  that  the  transaction  shall  be  void;  others  pro- 
vide for  criminal  punishment  and  are  construed  as  impliedly 
making  the  transaction  void.75  Where  there  is  no  such  provision, 
and  no  actual  fraud,  a  valid  contract  may  be  made  by  municipal 
authorities  with  a  municipal  officer ; 76  but  not  if  the  contract  is 
one  which  it  is  the  officer's  official  duty  to  see  properly  per- 
formed.77 

It  is  a  general  rule  that  a  public  officer  whose  duty  it  is  to  act 
judicially  or  quasi- judicially  is  disqualified  from  exercising  juris- 
diction in  any  case  in  which  he  has  a  direct  personal  interest.78 
An  owner  of  property  which  is  within  a  district  to  be  assessed 
for  benefits  is  usually  disqualified  from  acting  as  a  commissioner 
to  spread  the  assessment.79 

73  Fort  Wayne  v.  Rosenthall,  75    invalid.    Mayor  of  Macon  v.  Huff, 
Ind.  156,  39  Am.  Rep.  127;  First     60  Ga.  221. 

National  Bank  v.  Township  Clerk,        78  "go  tender  is  our  law  of  bias 

141  Mich.  404,  104  N.  W.  171.   See  on  the  part  of  the  noblest  and  pur- 

supra,  §  177  and  cases  cited.  est  in  behalf  of  self-interest,  that 

74  Findlay  v.  Pertz,  66  Fed.  427.  no  judge  is  permitted  to  sit  in  a 

75  Fort  Wayne  v.  Rosenthall,  75  cause  in  which  he  has  any  interest. 
Ind.  156,  39  Am.  Rep.  127.  If  a  relative  by  blood  or  marriage 

76  Miles  v.  Muzzy,  33  Mich.  61,  within  a  certain  degree,  is  inter- 
20  Am.  R.  670;  United  States  v.  ested,  he  cannot  sit  and  determine 
Brindle,  110  TJ.   S.  688;  McBride  the    case    [statute?].     The    same 
v.   Grand   Rapids,   47   Mich.   236;  principle  applies  to  jurors  and  to 
Commrs.  v.  Mitchell,  131  Ind.  370,  all  courts,   federal,   state,  or  rnu- 
30  N.  E.  409,  15  L.  R.  A.  570.  nicipal."    Court  in  Mayor  v.  Huff, 

77  A  contract  by  a  city  council  supra. 

with   a   mayor   for   the  care  and  79  Drainage    Dist.    v.    Hutchins, 

repair  of  a  park  when  it  was  the  234  111.  31 ;  Drainage  Dist.  v.  Smith, 

official  duty  of  the  mayor  under  233  111.  417;  see  Topeka  v.  Hun- 

the  charter  to  see  that  the  park  toon,  46  Kas.  634;  Steckert  v.  E. 

was   properly   repaired,   was  held  Saginaw,  22  Mich.  104;  Lickly  v. 


184  PUBLIC   CORPORATIONS.  [§  184 

§  184.  Incompatible  offices. — By  the  common  law,  if  one 
while  occupying  a  public  office  accepts  another  which  is  incom- 
patible with  it,  the  holding  of  the  first  terminates,  without  judi- 
cial proceedings  or  any  other  act  of  the  incumbent.  The  accept- 
ance of  the  second  office  operates  as  a  resignation  of  the  first.80 
Under  this  rule  the  question  of  compatibility  must  be  determined 
by  the  courts.  When  the  law  forbids  the  holding  of  two  offices  at 
the  same  time,  or  the  holding  of  two  lucrative  offices,  or  a  state 
and  federal  office,  the  effect  is  the  same.  ' '  In  each  case  the  hold- 
ing of  the  two  offices  is  illegal ;  it  is  made  so  in  one  case  by  the 
policy  of  the  law  and  in  the  other  by  absolute  law.  In  either  case 
the  law  presumes  that  the  officer  did  not  intend  to  commit  the 
unlawful  act  of  holding  both  offices,  and  a  surrender  of  the  first 
is  implied."81  The  common-law  rule  assumes  that  the  offices 
are  derived  from  a  common  source.  But  state  authorities  cannot 
declare  a  federal  office  vacant  because  the  incumbent  has  ac- 
cepted a  state  office  when  the  constitution  prohibits  the  holding 
of  both  at  the  same  time.82  The  incompatibility  does  not  consist 
in  the  physical  inability  of  one  person  to  discharge  the  duties  of 
the  two  offices.  There  must  be  some  inconsistency  in  the  func- 
tions of  the  offices;  some  conflict  in  the  duties  required  of  the 
officer;  as  where  one  has  supervision  of  the  other,  or  is  required 
to  deal  with,  control  or  assist  the  other.  As  said  by  Judge 
Folger,83  "Where  one  office  is  not  subordinate  to  the  other  nor 

Bishop,    150   Mich.    256 ;    Murr   v.  Ion,   Mun.   Corp.,    §  225.     "An   ex- 

Naperville,  210  111.  371,  overruled  ception  is  made  to  the  general  rule 

by  Betts  v.  Naperville,  214  111.  380.  in  those  cases  in  which  an  officer 

Compare,  Scott  v.  People,  120  111.  cannot  vacate  the  first  office  by  his 

129.  own  act,  upon  the  principle  that 

so  Milward  v.  Thatcher,  2  T.  R.  he  will  not  be  permitted  to  do  in- 

81,  7  Eng.  Rul.  Cas.  320  (the  lead-  directly  what  he  could  not  do  di- 

ing  case)  ;  Rex  v.  Pateman,  2  T.  R.  rectly."     Mechem,  Pub.  Off.,  §  421. 

777 ;  Rex  v.  Patteson,  4  B.  &  Ad.  si  State  v.  Bus,  135  Mo.  325,  36 

9;  People  v.  Carrique,  2  Hill    (N.  S.  W.  636,  33  L.  R.  A.  616;  State 

Y.),  93;  Mechem,  Pub.  Off.,  §420;  v.  Draper,  45  Mo.  355. 

Throop,  Pub.  Off.,  §30.     "The  ac-  sa  De  Turk  v.  Com.,  129  Pa.  St 

ceptance  of  the  incompatible  office  151,  18  Atl.  757,  15  Am.  St.  705,  5 

*     *     *     absolutely  terminates  the  L.  R.  A.  853,  note, 

original  office,  leaving  no  shadow  ss  People  v.  Green,  58  N.  Y.  295 ; 

of  title  in  the  possessor,  whose  sue-  State  v.  Goff,  15  R.  I.  507,  2  Am. 

cessor  may  be  at  once  elected  or  St.  921 ;  State  v.  Bus,  135  Mo.  325, 

appointed,    neither    quo    warranto  36  S.  W.  636,  33  L.  R.  A.  616 ;  Folz 

nor  motion  being  necessary."  Dil-  v.  Kerlin,  105  Ind.  221. 


§  185]  GOVERNING  BODIES,   OFFICERS   AND  AGENTS.  185 

the  relations  of  the  one  to  the  other  such  as  are  inconsistent  and 
repugnant,  there  is  not  that  incompatibility  from  which  the  law 
declares  that  the  acceptance  of  the  one  is  the  vacation  of  the 
other.  The  force  of  the  word  in  its  application  to  this  matter  is 
that  from  the  nature  and  relations  to  each  other  of  the  two  places 
they  ought  not  to  be  held  by  the  same  person,  from  the  contra- 
riety and  antagonism  which  would  result  in  the  attempt  by  one 
person  to  faithfully  and  impartially  discharge  the  duties  of  one 
toward  the  incumbent  of  the  other.  Thus,  a  man  may  not  be 
landlord  and  tenant  of  the  same  premises.  He  may  be  landlord 
of  one  farm  and  tenant  of  another,  though  he  may  not  at  the 
same  hour  be  able  to  do  the  duty  of  each  relation.  The  offices 
must  subordinate  one  the  other,  and  they  must  per  se  have  the 
right  to  interfere  one  with  the  other,  before  they  are  incompatible 
at  common  law."  But  an  officer  who  has  given  bond  for  the 
faithful  performance  of  his  duties  cannot  relieve  himself  from  its 
responsibilities  by  resignation.  Thus,  where  a  tax  collector  ac- 
cepted the  incompatible  office  of  selectman,  the  court  said:8* 
"The  acceptance  of  an  office  by  one  disqualified  to  hold  it  by 
reason  of  holding  an  incompatible  office  is  not  necessarily  a 
resignation  of  the  prior  office,  unless  it  is  made  so  by  special 
statutory  or  constitutional  provision."  A  person  may  hold  any 
number  of  offices  if  they  are  not  incompatible  and  if  the  holding 
is  not  forbidden  by  statute.83 

§  185.  Illustrations. — There  are  many  cases  illustrating  the 
rule  that  a  person  cannot  hold  two  offices  which  are  incompatible. 
The  following  have  been  held  incompatible:  Governor  and 
member  of  the  legislature ; se  sheriff  and  justice  of  the  peace ; 87 
member  of  prudential  committee  and  auditor  of  a  school  dis- 
trict;88 governor  and  mayor  of  a  city;89  state  treasurer  and 
justice  of  the  peace ; 90  secretary  and  recorder  of  a  city ;  91  con- 

s*  Attorney-General   v.    Marston,  ss  Cotton  v.   Phillips,   56   N.   H. 

66  N.  H.  485,  22  Atl.  560,  13  L.  R.  220. 

A.  670.  89  Attorney-General    v.    Common 

ssBadeau  v.  United  States,  130  Council  of  Detroit,  113  Mich.  388, 

U.    S.    439;    Converse    v.    United  71  N.  W.  632,  37  L.  R.  A.  211. 

States,  21  How.   (U.  S.)  470.  so  State  v.  Hutt,  2  Ark.  282. 

se  Barnum  v.  Gilman,  27  Minn.  »i  State  v.  Brinkerhoff,  66  Tex. 

466,  38  Am.  Dec.  304.  45. 

ST  Stubbs  v.  Lee,  64  Me.  195,  18 
Am.  Rep.  251. 


186  PUBLIC   CORPORATIONS.  [§  J85 

stable  and  justice  of  the  peace ; 92  councilman  and  city 
marshal;93  justice  of  the  peace  and  deputy-sheriff;94  township 
trustee  and  postmaster;95  postmaster  and  county  judge;90 
alderman  and  member  of  congress ; 97  jurat  and  town  clerk ; 98 
city  clerk  and  township  supervisor.99 

The  following  offices  have  been  held  compatible:  A  deputy- 
sheriff  in  a  city  and  a  director  of  the  public  schools  of  the  city ;  * 
clerk  of  the  circuit  court  and  clerk  of  the  county  court ; 2  school 
director  and  judge  of  elections ; 3  clerk  of  the  district  court  and 
court  commissioner ; 4  crier  and  messenger  of  a  court ; 5  member 
of  the  assembly  and  clerk  of  the  court  of  special  sessions.6 

A  lucrative  office  is  one  where  pay  is  affixed  to  the  perform- 
ance of  the  duties.7  The  offices  of  township  trustee,8  recorder 
and  county  commissioner,9  supreme  court  reporter,10  school 
trustee  of  an  incorporated  town,11  are  "lucrative  offices." 

Park  commissioners  are  officers  under  the  city  government, 
within  the  meaning  of  a  provision  that  city  officers  shall  not  be 
eligible  to  the  legislature,  where  the  power  to  appoint  or  suspend 
them  is  vested  in  the  city  council,  and  they  are  required  to  take 
the  constitutional  oath  of  office  and  are  prohibited  from  holding 
any  other  office.12  If  an  office  is  purely  municipal,  the  officer 
is  not  within  a  constitutional  provision  declaring  that  no  person 
shall  hold  more  than  one  lucrative  office  at  the  same  time.13  A 

92Magie  v.   Stoddard,  25  Conn.        *Kenney  v.  Goergen,  36  Minn. 

565,  68  Am.  Dec.  375.  90. 

93  State  v.  Hoyt,  2  Oreg.  246.  s  Preston   v.   United   States,   37 

84  State  v.  Goff,  15  R.  I.  505,  2  Fed.  417. 
Am.  St.  921,  note.  6  People  v.  Green,  58  N.  Y.  295. 

as  Foltz  v.  Kerlin,  105  Ind.  221,        1  State  v.  Kirk,  44  Ind.  401. 
55  Am.  Rep.  197.  8  Foltz  v.  Kerlin,  105  Ind.  221. 

9«Hoglan  v.  Carpenter,  4  Bush        »Dailey  v.  State,  8  Blackf.  (Ind.) 

(Ky.),  89.  329. 

»7  People  v.  Common  Council,  77        10  Kerr  v.  Jones,  19  Ind.  351. 
N.  Y.  503,  33  Am.  Rep.  659.  "•  Chambers  v.  Barnard,  127  Ind. 

98  Milward  v.  Thatcher,  2  T.  R.  385,  11  L.  R.  A.  613,  note. 
81,  7  Eng.  Rul.  Cas.  320,  annotated.        12  People  v.  State  Board  of  Com- 

99Northway    v.     Sheridan,    111  missioners,  129  N.   Y.  3CO,   14  L. 

Mich.  18,  69  N.  W.  82.  R.  A.  646,  annotated. 

1  State  v.  Bus,  135  Mo.  325,  33        13  Chambers  v.  Barnard,  127  Ind. 
L.  R.  A.  616.  365,  11  L.  R.  A.  613. 

2  State  v.  Lusk,  48  Mo.  242. 

^  In    re    District    Attorney,    11 
Phila.  645. 


§186] 


GOVERNING  BODIES,  OFFICERS  AND  AGENTS. 


187 


county  commissioner  is  not  an  officer  of  the  commonwealth  and 
cannot  be  impeached.14 

§186.  Officers  de  facto.— A  de  facto  officer  is  one  who  dis- 
charges the  duties  of  an  office  under  color  of  title.  The  acts  of 
a  de  facto  officer  before  the  title  to  the  office  is  determined  cannot 
be  collaterally  assailed.15  There  can  be  no  de  facto  officer  where 
the  de  jure  officer  -is  in  possession  of  the  office.16  The  doctrine 


i*  Opinion  of  Justices,  167  Mass. 
599,  46  K  E.  118. 

is  Hamlin  v.  Kassafer,  15  Oreg. 
456,  3  Am.  St.  176;  Jewel  v.  Gil- 
bert, 64  N.  H.  13,  10  Am.  St.  357; 
People  v.  White,  24  Wend.  520.  The 
doctrine  of  the  de  facto  officer 
merely  precludes  the  questioning 
of  his  title  as  a  collateral  issue. 
In  actions  in  which  the  cause  of 
action  or  the  defence  is  founded 
upon  rights  pertaining  to  the  office, 
the  title  is  directly  in  issue  and 
may  be  litigated.  E.  g.  In  an 
action  against  a  police  officer  for 
assault  and  battery,  if  the  defend- 
ant justifies  by  his  office,  be  must 
prove  himself  to  be  an  officer  de 
jure.  Short  v.  Symes,  150  Mass. 
298,  15  Am.  St.  204.  So,  a  de  facto 
officer  cannot  recover  the  salary 
of  the  office.  Scott  v.  Chicago,  205 
111.  281.  "If  the  right  to  hold  the 
office  is  directly  attacked  by  quo 
warranto  proceedings,  the  question 
is  confined  to  the  strict  question  of 
constitutionality  or  regularity  and 
qualification ;  but  if  the  official  ac- 
tion arises  collaterally  and  is 
questioned  as  a  defense  to  official 
action,  or  by  an  officer  to  escape 
official  liability,  that  is  known  as 
a  collateral  attack."  1  Andrews' 
American  Law,  §388. 

i«  As  to  liability  of  sureties  on 
the  bond  of  an  officer  de  facto,  see 
Holt  Co.  v.  Scott,  53  Neb.  176,  73 
N.  W.  681.  In  Jones  v.  Scan- 
land.  6  Humph.  (Term.)  195,— an 


action  upon  an  official  bond, — it 
was  said:  "Although  the  election 
of  a  person  as  sheriff  was  void,  and 
his  induction  into  office  illegal  by 
reason  of  his  having  then  been  a 
defaulter  to  the  treasury,  and  he 
did  not  thereby  become  sheriff 
de  jure,  yet  he  became  sheriff  de 
facto,  and  those  who  voluntarily 
bound  themselves  for  the  faithful 
performance  of  his  duties,  as  sure- 
ties, cannot  absolve  themselves 
from  their  obligation  by  insisting 
that  he  was  no  sheriff."  In  State 
v.  Rhoades,  6  Nev.  352,  it  was 
held :  "Where  a  state  treasurer, 
re-elected  in  1866,  accepted  a  new 
commission  and  took  a  new  oath, 
and  continued  to  discharge  the 
duties  of  the  office,  but  failed  to 
file  a  new  official  bond  within  the 
time  prescribed  by  law,  held,  that 
he  was  an  officer  de  facto,  and 
holding  as  of  the  new  term ;  and 
that  the  sureties  on  the  new  bond 
afterwards  filed  were  estopped 
from  denying  that  he  was  holding 
as  of  the  new  term  de  jure.  *  *  * 
A  person  discharging  the  duties  of 
a  public  office  under  color  of  right 
is  an  officer  de  facto,  and  not  a 
mere  intruder.  *  *  *  Where  a 
person  discharges  the  duties  of  an 
office  as  an  officer  de  facto,  and 
not  as  a  mere-  intruder,  he  and  his 
sureties  are  estopped  by  the  re- 
citals in  his  official  bond  from 
denying  that  he  is  entitled  to  the 
office," 


188 


PUBLIC   CORPORATIONS. 


[§186 


that  the  acts  of  de  facto  officers  are  valid17  applies  to  the  acts 
of  members  of  the  governing  body  of  a  municipal  corporation.18 
The  doctrine,  however,  has  no  application  to  a  case  where  the 
acts  of  the  officer  are  challenged  at  the  outset  and  before  any 
person  has  been  or  can  be  misled  or  any  right  of  either  a  public 
or  private  character  accrued.19 

Before  there  can  be  a  de  facto  officer  there  must  be  a  die  jure 
office.  In  a  case  where  it  was  sought  to  sustain  the  acts  of  certain 
commissioners  who  were  appointed  under  an  unconstitutional 
act  Mr.  Justice  Field  said:20  "The  doctrine  which  gives  valid- 
ity to  acts  of  officers  de  facto,  whatever  defect  there  may  be  in 
the  legality  of  their  appointment  or  election,  is  founded  upon 
considerations  of  policy  and  necessity,  for  the  protection  of  the 
public  and  individuals  whose  interests  may  be  affected  thereby. 
Offices  are  created  for  the  benefit  of  the  public,  and  private 
parties  are  not  permitted  to  inquire  into  the  title  of  persons 
clothed  with  the  evidence  of  such  offices  and  in  apparent  posses- 


17  School  District  v.  Smith,  67 
Vt.  566,  32  Atl.  484. 

is  Williams  v.  Boynton,  147  N. 
Y.  426,  42  N.  E.  184. 

is  Decorah  v.  Bullis,  25  Iowa,  12 ; 
Lover  v.  Glochlin,  28  Wis.  364; 
People  v.  Nostrand,  46  N.  Y.  378. 
In  the  leading  case  d¥  State  v.  Car- 
roll, 38  Conn.  449,  9  Am.  Rep.  409, 
the  court  said :  "An  officer  de  facto 
is  one  whose  acts.-tbough  not  those 
of  a  lawful  officer,  the  law,  upon 
principles  of  policy  or  justice,  will 
hold  valid,  so  far  as  they  involve 
the  interests  of  the  public  or  third 
persons,  where  the  duties  of  the 
office  were  exercised  *  *  *  un- 
der color  of  a  known  election  or 
appointment,  void  because  the  offi- 
cer was  not  eligible,  *  *  *  such 
ineligibility  being  unknown  to  the 
public."  Holt  Co.  v.  Scott,  53  Neb. 
176,  73  N.  W.  681,  and  many  cases 
cited  by  the  court. 

20  Norton  v.  Shelby  Co.,  118  TJ. 
S.  425;  People  v.  Hecht,  105  Cal. 
C21,  27  L.  R.  A.  203.  During  the 


pendency  of  certiorari  proceedings 
to  determine  the  legality  of  the 
removal  of  a  commissioner  of 
health  of  a  city,  it  became  neces- 
sary that  someone  perform  the 
duties  of  the  office ;  and  the  mayor 
appointed  a  person  "acting  com- 
missioner of  health,"  and  he  per- 
formed the  duties  of  the  commis- 
sioner and  was  permitted  to  draw 
the  salary  of  that  office.  The 
mayor  had  no  authority  to  pro- 
vide an  acting  commissioner.  Held : 
the  appointee  was  a  mere  intruder ; 
there  was  no  such  office  as  acting 
commissioner  and  so  he  could  not 
be  deemed  to  hold  that  office  de 
facto;  and  he  was  not  commis- 
sioner de  facto,  because  he  was 
never  assumed  to  be  a  regular  in- 
cumbent of  that  office.  Payment 
of  the  commissioner's  salary  to  the 
appointee  did  not  relieve  the  city 
from  liability  to  the  commissioner 
upon  his  removal  having  been  an- 
nulled. Kempster  v.  Milwaukee, 
97  Wis.  343,  72  N.  W.  743. 


§  187]  GOVERNING  BODIES,  OFFICERS  AND  AGENTS.  189 

sion  of  their  powers  and  functions.  For  the  good  order  and  peace 
of  society,  their  authority  is  to  be  respected  and  obeyed  until  in 
some  regular  mode  prescribed  by  law  their  title  is  investigated 
and  determined.  It  is  manifest  that  endless  confusion  would 
result  if  in  every  proceeding  before  such  officers  their  title  could 
be  called  in  question.  But  the  idea  of  an  officer  implies  the  exist- 
ence of  an  office  which  he  holds.  It  would  be  a  misapplication 
of  terms  to  call  one  an  officer  who  holds  no  office,  and  a  public 
office  can  exist  only  by  force  of  law.  This  seems  to  us  so  obvious 
that  we  should  hardly  feel  called  upon  to  consider  any  adverse 
opinion  on  the  subject  but  for  the  earnest  contention  of  plaintiff's 
counsel  that  such  existence  is  not  essential,  and  that  it  is  suffi- 
cient if  the  office  be  provided  for  by  any  legislative  enactment 
however  invalid.  Their  position  is  that  a  legislative  act,  though 
unconstitutional,  may  in  terms  create  an  office,  and  nothing 
further  than  its  apparent  existence  is  necessary  to  give  validity 
to  the  acts  of  its  assumed  incumbent.  *  *  *  An  unconsti- 
tutional act  is  not  a  law;  it  confers  no  rights;  it  imposes  no 
duties ;  it  affords  no  protection ;  it  creates  no  office ;  it  is  in  legal 
contemplation  as  inoperative  as  though  it  had  never  been  passed. 
*  *  *  For  the  existence  of  a  de  facto  officer  there  must  be  an 
office  de  jure.  *  *  *  Where  no  office  legally  exists  the  pre- 
tended officer  is  merely  an  usurper,  to  whose  acts  no  validity  can 
be  attached. ' '  There  are  many  courts,  however,  which  support  the 
doctrine  that,  even  though  a  law  which  purports  to  create  an  of- 
fice is  unconstitutional,  there  is,  until  a  judicial  adjudication  of 
its  unconstitutionally,  sufficient  color  of  legal  authority  to  make 
the  incumbent  an  officer  de  facto.21  The  same  division  among  the 
authorities  is  found  here  as  was  noticed  in  connection  with  cor- 
porations de  facto,  A  mere  intruder  cannot  be  regarded  as  an 
officer  de  facto.22 

§187.  De  facto  officers — Continued. — Two  persons  cannot 
be  officers  de  facto  in  the  same  office  at  the  same  time.  If  an 
office  is  filled  and  the  duties  pertaining  thereto  are  performed  by 
an  officer  or  a  body  de  jure,  another  person  or  body,  although 

21  State  v.  Carroll,  38  Conn.  449 ;  who  assumes  to  perform  the  duties 
Lang  v.  Mayor,  etc.,  of  Bayoniie,  of  a  public  office  without  an  at- 
74  N.  J.  L.  455,  68  Atl.  90.  tempt  to  qualify  is  without  color 

22  Hamlin  v.  Kassafer,  15  Oreg.  of  title.    Creighton  v.  Com.,  83  Ky. 
456,  3  Am.  St.  176,  and  cases  cited.  147. 

See  note  in  4  Am.  St.  147.     One 


190  PUBLIC   CORPORATIONS.  [§  188 

claiming  the  office  under  color  of  title,  cannot  be  an  officer  .or 
body  de  facto,  and  the  relations  of  the  parties  cannot  be  changed 
by  the  physical  ousting  of  the  body  or  officer  de  jure  from  the 
room  where  the  business  is  transacted.23  One  is  not  a  de  facto 
officer  who  has  not  the  reputation  of  being  such  an  officer,  and 
whose  acts  and  authority  as  such  officer  are  not  generally  recog- 
nized or  acquiesced  in,  and  who  does  not  exercise  the  duties  of 
the  office  under  such  circumstances  of  continuance,  reputation, 
acquiescence  or  otherwise  as  to  afford  a  reasonable  presumption 
that  he  was  such  officer.24  One  who  is  appointed  to  an  office 
from  which  the  incumbent  has  never  been  legally  removed,  where 
the  latter  has  retained  possession  of  the  property  of  the  office 
and  continued  to  discharge  its  duties,  is  not  an  officer  de  facto.25 
A  person  who  has  been  elected  to  an  office  in  a  manner  consistent 
with  an  honest  misapprehension  of  the  law,  and  not  in  palpable 
disregard  of  its  provisions,  is  an  officer  de  facto  although  the 
election  may  be  held  invalid.26  The  members  of  a  commission 
duly  appointed  to  prepare  a  city  charter  are  de  facto  officers, 
although  not  possessing  the  necessary  qualification  of  five  years' 
residence.27 

§  188.  Compensation. — Any  right  of  a  public  officer  to  com- 
pensation must  rest  upon  some  provision  by  charter,  statute,  or 
ordinance.  In  the  absence  of  any  such  provision,  he  is  not  en- 
titled to  payment  for  his  services.28  His  services  are  not  ren- 

23  in  re  Gunn,  19  L.  R.  A.  519 ;  by  the  public,  or  reputation,  as  the 

McChaon  v.  Leavenworth  County,  rightful    incumbent.      Dabney    v. 

8  Kan.  438;   State  v.  Blossom,  19  Hudson,  68  Miss.  262,  24  Am.  St. 

Nev.  312.  276. 

2*  State  v.  Pinkerman,  63  Conn.  25  Halgren  v.  Campbell,  82  Mich. 

176,  22  L.  R.  A.  563;  Hamlin  v.  255,  9  L.  R.  A.  408. 

Kassafer,  15  Oreg.  456,  3  Am.  St.  26  State    v.    Mayor    of    Atlantic 

176.    A  person  was  elected  justice  City,  52  N.  J.  L.  332,  8  L.  R.  A. 

of  the  peace  for  a  term  to  begin  697. 

January  6.     He  qualified  and  re-  27  People  v.  Hecht,  105  Cal.  621, 

ceived    possession    of    the    docket  27  L.  R.  A.  203. 

January  1.   Both  he  and  his  pred-  23  McCumber  v.   Waukesha   Co., 

ecessor  believed  and  assumed  that  91  Wis.  442,  65  N.  W.  51 ;  Locke  v. 

the  term  began  on  that  date.   Jan-  City  of  Central,  4  Colo.  65,  34  Am. 

uary  4th  he  issued  a  replevin  writ.  Rep.  66 ;  Langdon  v.  Casselton,  30 

No    other    official    acts    appeared.  Vt.  285;  Romero  v.  United  States, 

Held;  the  writ  was  void.     There  24  Ct.  of  Cl.  331,  5  L.  R.  A.  69; 

had  been  no  sufficient  recognition  Kinuey  v.  United  States,  60  Fed. 


§  188]  GOVERNING  BODIES.  OFFICERS  AND  AGENTS.  191 

dered  under  any  contractual  relation.  Even  where  compensa- 
tion has  been  provided  for,  the  officer  has  no  contractual  right 
prospectively  to  such  compensation  for  the  remainder  of  his 
term.  It  is  under  the  control  of  the  legislature,  and  in  the  ab- 
sence of  constitutional  restrictions  it  may  be  increased,  dimin- 
ished or  entirely  taken  away  at  any  time.29.  When  a  statute 
allowing  an  officer  compensation  admits  of  two  interpretations 
it  should  be  construed  strictly  against  the  officer.30  It  is  gener- 
ally provided  by  constitutions,  however,  that  the  salary  shall  not 
be  increased  or  diminished  during  the  term  of  office.31 

An  officer  cannot  recover  extra  compensation  for  performing 
additional  duties  attached  to  his  office  after  he  has  entered  upon 
the  performance  of  his  duties.  In  a  recent  case  the  supreme 
court  of  Iowa  said :  32  "  By  the  act  of  the  legislature  authorizing 
the  creation  of  boards  of  health  the  mayor  was  made  a  member 
of  said  board  and  its  chairman.  "While  additional  duties  were 
thus  imposed  upon  the  mayor  no  additional  compensation  was 
allowed  therefor.  This  he  knew  when  he  accepted  the  office,  and 
he-  is  bound  to  perform  the  duties  of  the  office  for  a  salary  fixed, 
and  cannot  legally  claim  additional  compensation  for  additional 
services,  even  though  they  be  subsequently  imposed  upon  him; 
and  it  matters  not  that  the  salary  was  inadequate."33  Cases  of 

883.  When  no  salary  was  attached  33  People  v.  Vilas,  36  N.  Y.  459 ; 

to  the  office  of  mayor,  an  incuin-  Mayor  v.  Kelley,  98  N.  Y.  467; 

bent  of  the  office  could  not  collect  Marshall  Co.  v.  Johnson,  127  Ind. 

fees  for  services  rendered  in  the  238,  26  N.  E.  821;  Pierie  v.  Phila- 

capacity  of  a  justice  of  the  peace,  delphia,  139  Pa.  St.  573,  21  Atl. 

Rowland  v.  Wright  Co.,  82  Iowa,  Rep.  90;  Tarnsney  v.  Board  of 

164,  47  N.  W.  1086.  See  Prince  v.  Edu.,  147  Mich.  418 ;  Foote  v.  Lake 

City  of  Fresno,  88  Cal.  407,  26  Pac.  County,  206  111.  185.  An  assign- 

606.  ment  by  a  public  officer  of  his  un- 

2»Cooley,  Const.  Lim.  (7th  ed.),  earned  salary  as  security  for  a 

388;  Swan  v.  Buck,  40  Miss.  268;  debt  is  contrary  to  public  policy 

People  v.  Morrell,  21  Wend.  (N.  Y.)  and  void.  The  reasons  for  this 

563.  rule  apply  with  greater  force  to 

so  United  States  v.  Clough,  55  fees  payable  to  an  officer,  as  for 

Fed.  373,  5  C.  C.  A.  140.  example  a  sheriff,  upon  the  due 

si  Such  a  constitutional  provision  performance  of  public  duty  which 

does  not  apply  to  police  officers,  cannot  be  discharged  by  any  other 

Mangam  v.  Brooklyn,  98  N.  Y.  585,  officer.  "If  he  could  assign  to  one 

5  Am.  Rep.  705.  he  could  to  many,  and  every  pur- 

32  State  v.  Olinger  (Iowa,  1897),  chaser  would  be  entitled  to  the 

72  N.  W.  441.  rights  of  assignees  of  claims 


192  PUBLIC   CORPORATIONS.  [§  189 

this  kind  should  be  distinguished,  however,  from  those  in  which 
a  municipal  officer  is  requested  by  the  governing  body,  or  by 
some  other  agency  of  the  corporation  which  has  power  to  con- 
tract for  the  purpose,  to  render  special  services  which  lie  outside 
of  the  duties  of  his  office.  The  order  or  request  will  often  con- 
stitute a  special  employment,  and  involve  an  implied  agreement 
for  compensation.  Thus,  if  a  mayor,  who  is  an  attorney  at  law 
be  requested  by  the  council  to  act  as  attorney  for  the  city  in  some 
specified  litigation,  he  is  entitled  to  recover  from  the  city  the 
value  of  any  legal  services  rendered  in  compliance  with  the  re- 
quest.34 

§189.  Compensation — De  facto  officers. — The  general  rule 
is  that  the  salary  follows  the  legal  title  to  the  office.  Hence, 
only  an  officer  who  is  legally  elected  or  appointed  to  an  office  can 
maintain  an  action  to  collect  the  salary.35  Thus,  a  police  officer 
cannot  recover  for  salary  during  a  period  when  he  was  wrong- 
fully prevented  from  performing  the  duties  of  his  position,  un- 
less he  can  prove  that  he  was  legally  appointed.36  As  a  general 
rule,  an  officer  who  has  been  prevented  through  no  fault  of  his 
own  from  performing  the  duties  of  his  office  can  recover  his 
salary  during  the  interim,  and  cannot  be  compelled  to  account 
for  wages  earned  in  other  and  different  employments.37  But 
under  a  charter  providing  that  police  officers  shall  be  paid  "for 
the  time  engaged  in  active  service,"  an  officer  improperly  re- 
moved and  afterwards  reinstated  is  not  entitled  to  pay  pending 
reinstatement.38  After  an  officer  has  performed  services  under 
a  legal  election  or  appointment,  he  may  recover  from  the  corpor- 

against    individuals,    and    in    the  ery  Nat.  Bank  v.  Wilson,  122  N.  Y. 

case  of  conflicting  interests  or  of  478,  9  L.   R.  A.  706;   Granger  v. 

disputes  between  the  oflicer  and  his  French,  152  Mich.  356. 

alleged  transferee  the  government  34  Mayor,  etc.  of  Niles  v.  Muzzy, 

would  have  to  decide  at  its  peril  33  Mich.  61.    Contrast,  Warner  v. 

between  them  or  be  subjected  to  Auditor   General,   129   Mich.   648; 

litigation.    *    *    *    An  officer  hav-  Kobel  v.  Detroit,  142  Mich.  38. 

ing  assigned  his  interest  in  a  com-  35  Phelan  v.  Granville,  140  Mass. 

pensation  to  become  due  him  for  386. 

future  public  services  would  have  se  Yorks  v.  City  of  St.  Paul,  62 

less  interest  in  the  punctual  and  Minn.  250,  64  N.  W.  565. 

efficient  performance  of  his  duties,  3?  Fitzsimmons  v.  Brooklyn,  102 

and  in  the  case  of  improvident  as-  N.  Y.  536,  7  N.  E.  787. 

signments    might   be   without   the  as -Wilkinson    v.     Saginaw,     111 

ability  to  discharge  them."     Bow-  Mich.  585,  70  N.  W.  142. 


§189] 


GOVERNING  BODIES,  OFFICERS  AND  AGENTS. 


193 


ation  the  salary  which  is  by  law  affixed  to  the  office.  But  the 
relation  between  a  public  corporation  and  its  officer  is  not  based 
upon  contract,  and  where  the  office  exists  under  ordinance  there 
is  nothing  to  prevent  the  corporation  from  abolishing  it  and 
thus  depriving  the  officer  of  his  salary  for  the  unexpired  term.39 
A  de  facto  officer  cannot  maintain  an  action  for  salary.40  But 
the  general  rule  probably  is  that  the  payment  of  salary  to  a 
de  facto  officer  before  the  claim  to  the  office  has  been  determined 
against  him  by  a  competent  tribunal  will  defeat  the  right  of  the 
de  jure  officer  to  recover  the  salary  from  the  corporation.41 
Where  this  rule  prevails  the  remedy  of  the  de  jure  officer  is 
against  the  de  facto  officer.42  But  the  more  logical  rule  is  that 


39  In  City  Council  of  Augusta  v. 
Sweeny,  44  Ga.  463,  9  Am.  Rep. 
172,  the  court  said :  "The  right  of 
an  incumbent  to  an  office  does  not 
depend  on  any  contract  in  the  sense 
of  a  bargain  between  him  and  the 
public.  His  right  depends  on  the 
law  under  which  he  holds.  If  that 
law  be  one  capable  of  being  re- 
pealed by  the  power  which  acts, 
the  right  of  the  officer  is  gone. 
That  clause  of  the  bill  of  rights  in 
our  constitution  which  prohibits 
the  passage  of  a  law  affecting  pri- 
vate rights,  or  rather  the  varying 
of  a  general  law  by  special  legisla- 
tion so  as  to  affect  private  rights, 
cannot  affect  this  question,  since 
this  law  or  ordinance  of  council 
which  was  repealed  was  not  itself 
a  general  law,  but  a  law  creating 
a  particular  office,  which  the  power 
creating  it  had  the  same  power  to 
abolish  as  it  had  to  create."  State 
v.  Pinkerman,  63  Conn.  176,  28  Atl. 
110,  22  L.  R.  A.  653.  But  see  State 
v.  Friedley,  135  Ind.  119,  34  N.  E. 
872,  21  L.  R.  A.  634.  A  salaried 
officer  cannot  set  off  his  salary 
against  a  claim  by  the  city  against 
him  for  moneys  collected  by  him 
in  his  official  capacity.  New  Or- 
leans v-  Finnerty,  27  La.  Ann.  681, 
21  Am.  Rep.  569. 

13 


40  Andrews  v.  Portland,  79  Me. 
484,  10  Atl.  458,  10  Am.  St.  280; 
Romero  v.  United  States,  24  Ct  of 
Cl.  331,  5  L.  R.  A.  69.  See  note,  54 
Am.  Rep.  730. 

^iCreely  Co.  v.  Milne,  36  Neb. 
301,  19  L.  R.  A.  689,  ann. ;  Nichols 
v.  MacLean,  101  N.  Y.  526,  5  N.  E. 
347,  54  Am.  Rep.  730;  State  v. 
Clark,  52  Mo.  508;  Parker  v.  Da- 
kota Co.  4  Minn.  59  (Gil.  39)  ; 
Steubenville  v.  Culp,  38  Ohio  St. 
18,  43  Am.  Rep.  417;  Michel  v. 
New  Orleans,  32  La.  Ann.  1094; 
Saline  Co.  Com'rs  v.  Anderson,  20 
Kan.  298,  27  Am.  Rep.  171 ;  Wayne 
Co.  Auditor  v.  Benoit,  20  Mich.  176 ; 
Demarest  v.  New  York,  147  N.  Y. 
203,  41  N.  E.  405.  Contrast,  Kemp- 
ster  v.  Milwaukee,  97  Wis.  343,  72 
N.  W.  743. 

42  Bier  v.  Gorell,  30  W.  Va.  95, 
8  Am.  St.  17.  In  Kreitz  v.  Behrens- 
meyer,  149  111.  496,  24  L.  R.  A.  59, 
the  court  said :  "An  examination 
of  the  decisions  of  the  courts  of 
that  country  shows  a  uniform 
declaration  of  the  principle  that  a 
de  jure  officer  has  the  right  of 
action  to  recover  against  an  officer 
de  facto  by  reason  of  the  intrusion 
of  the  latter  into  his  office  and  his 
receipt  of  the  emoluments  thereof. 
Among  others,  the  following  opin- 


194 


PUBLIC   COEPOEATIONS. 


[§190 


the  de  jure  officer  is  entitled  to  recover  for  the  salary  notwith- 
standing it  has  been  paid  to  a  de  facto  officer.43 

§190.  Increase  of  salary — Misdemeanor. — In  some  states 
it  is  made  a  misdemeanor  for  a  member  of  a  city  council  to  vote 
upon  any  question  in  which  he  is  interested.  Under  a  charter 
which  provided  that  no  alderman  "shall  vote  on  any  question  in 
which  he  is  directly  or  indirectly  interested,"  and  a  statute 
which  provided  that  ' '  when  the  performance  of  an  act  is  prohib- 
ited by  any  statute  and  no  penalty  for  the  violation  of  such 
statute  is  imposed,  the  doing  of  such  act  is  a  misdemeanor,"  it 
was  held  that  an  alderman  who  voted  for  an  increase  of  his  salary 
was  guilty  of  a  misdemeanor.  The  court  said :  ' '  It  is  not  neces- 
sary that  any  injurious  consequences  should  have  resulted  from 
the  misconduct  of  the  officers.  The  crime  consists  in  a  perversion 
of  their  powers  and  duties  to  the  purposes  of  fraud  and  wrong ; 
and  they  are  punishable  although  no  injury  resulted  to  any 
individual,  and  no  money  was  drawn  from  the  treasury  by  reason 


ions  of  English  courts  may  be  re- 
ferred to  as  sustaining  this  right 
of  recovery:  Vaux  v.  Jefferson,  2 
Dyer,  114;  Arris  v.  Stukeley,  2 
Mod.  260;  Lee  v.  Drake,  2  Salk, 
468;  Webb's  Case,  8  Rep.  45.  By 
the  adoption  of  the  common  law  of 
England  the  principle  announced 
in  these  cases  was  adopted  as  the 
law  of  this  State,  for  the  principle 
is  of  a  general  nature  and  applica- 
ble to  our  condition.  On  the  basis 
of  a  sound  public  policy,  the  prin- 
ciple commends  itself,  for  the  rea- 
son that  one  would  be  less  liable 
to  usurp  or  wrongfully  retain  a 
public  office,  and  defeat  the  will  of 
the  people  or  the  appointing  power, 
if  no  benefit,  but  a  loss  would  re- 
sult from  such  wrongful  retention 
or  usurpation  of  an  office.  The 
question  has  frequently  been  be- 
fore the  courts  of  the  different 
states  and  of  the  United  States, 
and  the  great  weight  of  authority 


sustains  the  doctrine  of  the  com- 
mon law.  "Citing  United  States 
v.  Addison,  6  Wall.  291;  Dolan 
v.  New  York,  68  N.  Y.  274, 
23  Am.  Rep.  168;  Glasscock  v. 
Lyons,  20  Ind.  1,  83  Am.  Dec.  299 ; 
Kessel  v.  Leiser,  102  N.  Y.  114,  55 
Am.  Rep.  769;  Nichols  v.  McLean, 
101  N.  Y.  526,  54  Am.  Rep.  730; 
People  v.  Miller,  24  Mich.  458,  9 
Am.  Rep.  131 ;  Hunter  v.  Chandler, 
45  Mo.  452;  People  v.  Smithe,  28 
Cal.  21 ;  Pettit  7.  Rousseau,  15  La. 
Ann.  239.  Contra,  Stuhr  v.  Cur- 
ran,  44  N.  J.  L.  181,  43  Am.  Rep. 
353. 

«  State  v.  Carr,  129  Ind.  44,  28 
N.  E.  88,  13  L.  R.  A.  177 ;  Andrews 
v.  Portland,  79  Me.  485,  10  Atl.  458, 
10  Am.  St.  280 ;  Ward  v.  Marshall, 
96  Cal.  153,  30  Pac.  113 ;  Memphis 
v.  Woodward,  12  Heisk.  (Tenn.) 
499,  27  Am.  Rep.  750;  Kempster  v. 
City  of  Milwaukee,  97  Wis.  343,  72 
N.  W.  743. 


§  191]  GOVERNING  BODIES,  OFFICERS  AND  AGENTS.  195 

of  the  vote  to  increase  the  salaries. "  44  A  provision  that  the 
salary  of  an  officer  shall  not  be  reduced  during  his  term  of  office 
does  not  prevent  its  reduction  between  the  time  of  his  appoint- 
ment and  of  entering  upon  the  duties  of  the  office.45 

§191.  Compensation  of  employees — Attorneys. — The  prin- 
ciples governing  the  compensation  of  public  officers  have  no  ap- 
plication to  ordinary  employees.46  The  relation  between  them 
and  the  corporation  is  one  of  contract.  Where  the  salary  of  a 
city  attorney  is  fixed  by  law,  he  can  receive  no  other  compensa- 
tion for  legal  services  rendered.47  But  unless  restrained  by  its 
charter,  a  public  corporation  may  employ  an  attorney  to  transact 
its  legal  business,  and  may  be  compelled  to  pay  a  reasonable 
compensation  for  such  services.48  When  a  city  has  authority  to 
allow  its  attorney  ' '  fees, ' '  it  may  allow  him  a  commission  on  all 
moneys  collected  in  civil  and  criminal  cases.49  A  provision  that 
the  salary  of  a  city  attorney  shall  not  be  increased  during  his 
term  of  office  prevents  an  increase  in  his  salary  although  the  city 
passes  from  the  second  to  the  first  class  during  his  term  of 
office.50  A  county  attorney  may  receive  extra  compensation  for 
services  rendered  out  of  the  county  under  the  direction  of  the 
county  commissioners.51 

§  192.  The  mayor. — The  mayor  is  the  general  executive  offi- 
cer of  the  corporation,  although  he  sometimes  performs  the 

"State  v.  Shea,  106  la.  735,  72  Oil  City  (Pa.  St.  1887),  11  Atl. 
N.  W.  300.  As  bearing  upon  the  63.  The  duty  of  a  city  attorney  to 
question  see  State  v.  Van  Aucken  attend  to  "all  suits,  matters  and 
98  la.  674,  68  N.  W.  454;  Duty  v.  things"  in  which  the  city  is  inter- 
State,  9  Ind.  App.  595,  36  N.  E.  ested  is  not  limited  to  suits  in  any 
655 ;  People  v.  Bogart,  3  Park  particular  courts.  Buck  v.  Eureka, 
Crim.  Rep.  143.  In  Macy  v.  City  109  Cal.  504,  30  L.  R.  A.  409. 
of  Duluth,  68  Minn.  452,  71  N.  W.  *»  state  v.  Paterson,  40  N.  J.  L. 
687,  it  is  held  that  under  the  city  186;  Langdon  v.  Casselton,  30  Vt. 
charter  a  poundrnaster  cannot  re-  385. 

cover  on  an  implied  contract  for  49  Austin  v.  Johns,  62  Tex.  179. 

use   and   occupation   of   premises  50  Barnes   v.   Williams,   53  Ark. 

furnished  by  him  to  the  city  for  205,  13  S.  W.  845.    As  to  the  fees 

use  as  a  public  pound.  of  a  city  attorney,  see,  also,  Smith 

« Wesch    v.    Common    Council,  v.  Waterbury,  54  Conn.  174,  7  Atl. 

107  Mich.  149,  64  N.  W.  1051.  17. 

*«  City  of  Ellsworth  v.  Rossiter,  si  Leavenworth  County  v.  Brew- 

46  Kan.  237,  26  Pac.  674.  er,  9  Kan.  307;  White  v.  Polk,  17 

«Liddy  v.  Long  Island  City,  104  Iowa,  413;  Hoffman  v.  Greenwood 

N.  Y.  218,  10  N.  E.  155;  Hayes  v.  County,  23  Kan.  307. 


196  PUBLIC   CORPORATIONS.  [§  192 

judicial  duties  of  a  justice  of  the  peace.  His  court  is  not  a  court 
of  record,  and  the  corporate  seal  need  not  be  attached  to  a  war- 
rant issued  by  him.52  Conferring  the  jurisdiction  of  a  justice 
of  the  peace  upon  a  mayor  does  not  contravene  the  provision  of 
the  constitution  that  no  person  charged  with  the  exercise  of 
powers  properly  belonging  to  either  the  executive,  legislative  or 
judicial  department  shall  exercise  any  functions  pertaining  to 
either  of  the  others,  as  this  applies  only  to  the  different  depart- 
ments of  the  state  government.53  The  executive  duties  of  the 
mayor  pertain  to  him  only  as  an  officer  of  the  corporation. 
Where  the  mayor  presides  over  the  city  council  he  is  ordinarily 
given  the  right  to  vote  in  case  of  a  tie.  Where  two  official  news- 
papers are  to  be  chosen  by  the  council  and  three  papers  receive 
the  votes  of  four  aldermen  each,  the  mayor  in  casting  the  decid- 
ing vote  may  vote  for  two  papers.54  If  there  is  no  limitation 
upon  the  right  of  the  mayor  to  cast  the  deciding  vote,  it  may  be 
upon  the  question  of  the  choice  of  a  candidate  for  office  as  well 
as  upon  a  question  of  general  legislation.55  If  the  mayor  is  a 
lawyer  by  profession  and  there  is  no  collusion  or  fraud,  he  may 
recover  for  services  rendered  in  his  professional  capacity  in  de- 
fending a  suit  against  the  city  under  the  authority  of  a  resolu- 
tion of  the  council.56  The  compensation  of  a  mayor  when  pro- 
vided for  by  charter  cannot  be  entirely  taken  away  by  ordinance, 
under  a  provision  in  the  charter  authorizing  the  council  to 
change  the  same.57  It  is  no  part  of  the  duties  of  the  mayor  !••> 
aid  private  individuals  in  obtaining  their  right  to  examine  t;K> 
books  of  other  city  officials,  although  the  mayor  is  entitled  1  ) 
investigate  such  books  himself  and  to  give  the  information  s:: 
acquired  to  the  public.  A  combination  by  several  individuals  t  > 
obstruct  a  mayor  in  the  exercise  of  an  official  right  to  exam  in  • 
the  books  of  a  public  office  may  be  punishable  as  a  conspiracy/"' 
In  the  absence  of  the  mayor  the  officer  who  is  by  law  designated 
for  the  purpose  exercises  all  the  powers  of  the  mayor.59 

52  Santo  v.  State,  2  Iowa  155,  63  se  Mayor  v.  Muzzy,  33  Mich.  Cl. 

Am.  Dec.  487 ;  Scott  v.  Fishbate,  ^  State  v.  Nashville,  15  Lea 

117  N.  C.  265,  30  L.  R.  A.  696.  (Tenn.),  697,  54  Am.  Rep.  427. 

es  People  v.  Provines,  34  Cal.  518.  ss  Tryou   v.    Pingree,    112   Mich. 

54  Wooster  V.  Mullins,  64  Conn.  338,  70  N.  W.  905,  37  L.  R.  A.  222. 

340,  30  Atl.  144,  25  L.  R.  A.  694.  59  Datz  v.  Cleveland,  52  N.  J.  L. 

ss  State  v.  Pinkerman,  63  Conn.  188,  19  Atl.  17,  7  L.  R.  A.  431.  An 

176,  28  Atl.  110,  22  L.  R.  A.  653.  order  of  the  mayor,  not  required 


§  193]  GOVERNING  BODIES;  OFFICERS  AND  AGENTS.  197 

§  193.  Holding  over  after  expiration  of  term. — Unless  the 
contrary  is  expressly  provided,  an  officer  elected  or  appointed 
for  a  fixed  term  is  entitled  to  continue  in  office  until  his  successor 
is  elected  and  qualified.60  Hence,  one  whose  term  of  office  is  for 
a  specified  period  "and  until  his  successor  is  elected  and  quali- 
fied" will  remain  in  office  if  the  person  who  is  elected  to  succeed 
him  has  not  the  necessary  legal  qualifications.61  A  constitutional 
provision  that  "the  general  assembly  shall  not  create  any  office 
the  tenure  of  which  shall  be  more  than  four  years ' '  does  not  pre- 
vent the  incumbent  of  an  office  from  holding  until  his  successor 
is  elected  and  qualified.62  The  incumbent  will  hold  over  when 
there  is  a  failure  to  elect  his  successor.63  But  when  the  failure 
is  due  to  the  neglect  of  the  incumbent  to  perform  some  duty  im- 
posed upon  him  by  law,  such  as  to  give  notice  of  an  election,  he 
cannot  hold  over.64 

§  194.  Resignation. — At  common  law  an  officer  cannot  re- 
sign his  office  at  his  pleasure.  "As  civil  officers  are  appointed 
for  the  purpose  of  exercising  the  functions  and  carrying  on  the 
operations  of  government  and  maintaining  public  order,  a  polit- 
ical organization  would  seem  to  be  imperfect  which  should  allow 
the  depositaries  of  its  power  to  throw  off  their  responsibilities 
at  their  own  pleasure.  This  certainly  was  not  the  doctrine  of 
the  common  law.  In  England  a  person  elected  to  a  municipal 
office  was  obliged  to  accept  it  and  perform  its  duties,  and  he  sub- 
jected himself  to  a  penalty  by  refusal.  An  office  was  regarded 
as  a  burden  which  the  appointee  was  bound,  in  the  interest  of 
the  community  and  the  government,  to  bear.  And  from  this  it 

to  be  in  writing,  may  be  by  letter  45  Neb.  786,  64  N.  W.  242;  State 

or  orally,  in  any  manner  which  is  v.  Fagin,  42  Conn.  32. 

understood    by    all    parties    as    a  «i  Taylor  v.   Sullivan,  45  Minn, 

direction.    Eichenlaub  v.  St.  Joseph,  309,  22  Am.  St.  709,  11  L.  R.  A. 

113  Mo.  395,  21  S.  W.  8,  18  L.  R.  272.    See  People  v.  Rodgers,  supra. 

A.  590.  «2  State    v.    Harrison,    113    Ind. 

eo  State  v.   Smith,   87  Mo.   158 ;  434,  16  N.  E.  384,  3  Am.  St.  663. 

People   v.   Rodgers,   118   Cal.   393,  es  Lafferty  v.    Huffman,   99   Ky. 

46   Pac.   740,   50   Pac.    668;    State  80,    35    S.    W.    123,    32    L.    R.    A. 

v.     Bulkeley,     61     Conn.     287,    23  203. 

Atl.  186,  14  L.  R.  A.  657 ;  State  v.  64  People    v.    Bartlett,    6    Wend. 

Harrison,  113  Ind.  434  at  440,  16  (N.    Y.)     422.      A    contrary    rule 

N.   E.   384,   3   Am.    St.   663;   Kim-  would  enable  the  officer  to  profit 

berlin  v.   State,  130  Ind.   120,  14  by  his  own  carelessness  or  wrong. 
L.  R.  A.  858 ;  McMillin  v.  Richards, 


198  PUBLIC   CORPORATIONS.  [§195 

follows  of  course  that  after  an  office  was  conferred  and  assumed 
it  could  not  be  laid  down  without  the  consent  of  the  appointing 
power.  This  was  required  in  order  that  the  public  interests 
might  suffer  no  inconvenience  for  the  want  of  public  servants 
to  execute  the  laws. ' ' 65  The  acceptance  of  a  resignation  may  be 
manifested  by  a  formal  declaration  or  by  the  appointment  of  a 
successor.  "To  complete  a  resignation,"  says  Mr.  Willcock,  "it 
is  necessary  that  a  corporation  manifest  their  acceptance  of  the 
offer  to  resign,  which  may  be  done  by  an  entry  in  the  public 
books,  or  electing  another  person  to  fill  the  place,  treating  it  as 
vacant."66  In  some  jurisdictions  it  is  held  that  the  holding  of 
office  is  not  compulsory,  and  that  a  resignation  takes  effect  with- 
out acceptance,  and  that  a  successor  may  be  appointed  without 
the  formality  of  an  acceptance  of  the  resignation.67  When  it  is 
provided  that  an  incumbent  shall  hold  office  until  his  successor 
is  qualified,  he  is  not  relieved  from  the  duties  of  the  office  even 
by  the  acceptance  of  his  resignation.68 

§  195.  Removal :  elective  officers. — In  the  absence  of  other 
provision  by  law,  an  officer  elected  by  the  people  for  a  definite 
term,  can  be  removed  only  by  impeachment,  or  by  judicial  judg- 
ment of  forfeiture,  based  on  incompetency  or  misconduct.69 
And  even  where  an  authority  to  remove  such  an  officer  has  been 
expressly  conferred  in  general  terms  upon  some  executive  agency, 
its  exercise  is  deemed  a  quasi-judicial  judgment,  which  can  be  ren- 
dered only  upon  charges  after  affording  the  officer  an  opportu- 

es  Willcock.  Corp.,  p.  129 ;  Grant,  wards  v.  United  States,  103  U.  S. 

Corp.,    pp.   221,   223,   268;    Dillon,  471. 

Mun.  Corp.,  I.  §  163 ;  Rex  v.  Bower,  e?  Reiter  v.   State,   51   Ohio   St 

1  Barn.  &  Cress.  585 ;  Rex  v.  Bur-  74,  23  L.  R.  A.  681 ;  People  v.  Por- 

der,  4  T.  R.  778;  Rex  v.  Lone,  2  ter,  6  Cal.  26;  State  v.  Lincoln,  4 

Stra.  920;  Rex  v.  Jones,  2  Stra.  Neb.  260;   State  v.  Clark,  3  Neb. 

1146;  Hope  v.  Henderson,  4  Dev.  566;  Bunting  v.  Willis,  27  Gratt 

(N.  C.)  L.  1;  Van  Orsdale  v.  Haz-  144,  21  Am.  Rep.  338. 

ard,  3  Hill   (N.  Y.)  243;  State  v.  es  People  v.  Barnett  Tp.,  100  111. 

Ferguson,   31   N.   J.   L.   170.     The  332;    Jones   v.    Jefferson,   66   Tex. 

common-law   rule   is   in   force   in  573;   United   States   v.   Green,   53 

some  states.     State  v.  Clayton,  27  Fed.  Rep.  769;  Badger  v.  United 

Kan.  442,  41  Am.  Rep.  418 ;  Hope  States,  93  U.  S.  599.     See  Olmsted 

v.  Henderson,  15  N.  C.  29,  25  Am.  v.  Dennis,  77  N.  Y.  378. 

Dec.  677 ;  Coleman  v.  Sands,  87  Va.  «»  Attorney  General  v.  Stratton, 

689.  194  Mass.  51. 

ea  Willcock,   Corp.,   p.   239;    Ed- 


§196] 


GOVERNING  BODIES,  OFFICERS  AND  AGENTS. 


199 


nity  to  be  heard.70  It  has  even  been  intimated  that  such  an 
express  authority  confers  a  strictly  judicial  power — that,  for 
example,  to  confer  it  upon  a  state  executive  in  the  absence  of 
constitutional  permission  would  violate  the  principle  of  the 
separation  of  powers.71  Such  a  doctrine  would  not  apply  to  ap- 
pointive officers ;  their  removal  is  usually  deemed  an  administra- 
tive act.72 

How  far  the  ancient  power  of  corporations  in  general  to  amove 
corporate  officers  can  be  invoked  in  American  municipalities  to 
accomplish  the  removal  of  an  officer  elected  by  the  people  is  un- 
certain.73 

§  196.    Removal :    appointive    officers :    indefinite    term. — 

Where  the  officer  is  appointed,  and  no  term  of  office  is  fixed  or 
other  regulation  made,  a  power  of  removal  is  impliedly  vested  in 
the  appointing  agency.  The  officer  holds  at  the  pleasure  of  the 
latter.74  In  New  York,  Illinois,  California,  Kansas,  and  perhaps 


TO  Dullam  v.  Willson,  53  Mich. 
392,  19  N.  W.  112. 

71  People  v.  Stuart,  74  Mich.  411 ; 
compare,  Attorney  General  v.  Jo- 
cbim,  99  Mich.  358;  and  see  State 
v.  Peterson,  50  Minn.  239,  at  243, 
where  the  court  said :  "Whether 
the  power  of  removal  from  office 
for  official  misconduct  is  judicial 
in  its  nature  is  a  question  that  has 
been  much  discussed,  and  upon 
which  the  courts  in  this  country 
are  not  agreed.  Some  courts  hold 
the  affirmative,  seeming  to  proceed 
upon  the  ground  that  the  incum- 
bent has  a  property  in  his  office,  of 
which  he  cannot  be  deprived  with- 
out the  judgment  of  a  court,  after 
due  notice  and  a  hearing.  This 
view  is,  of  course,  in  accordance 
with  the  doctrine  of  common  law, 
which  regarded  an  office  as  a  here- 
ditament. See  State  v.  Pritchard, 
36  N.  J.  Law,  101 ;  Dullam  v.  Will- 
son,  53  Mich.  392,  19  N.  W. 
112. 

"Other  authorities  hold  that  the 
power  of  removal  from  office  is  ad- 


ministrative and  not  judicial. 
These  proceed  upon  the  theory 
that,  under  our  system  of  govern- 
ment, public  office  is  a  public  trust, 
and  not  private  property ;  that  the 
right  to  exercise  it  is  not  based 
upon  any  contract  or  grant,  but 
that  the  office  is  conferred  upon 
the  incumbent  as  a  public  agent, 
to  be  exercised  for  the  benefit  of 
the  public.  See  State  v.  Hawkins, 
44  Ohio  St.  98  (5  N.  E.  228)  ; 
Donahue  v.  County  of  Will,  100 
111.  94." 

72  Fuller  v.  Attorney  General,  98 
Mich.  96,  57  N.  W.  33. 

73  See   1    Dillon,    §  251,    et   seq; 
Rex   v.   Richardson,   1   Burr.  540; 
see  Attorney  General  v.  Stratton, 
supra.    Power  of  a  corporation  to 
expel  a  member  does  not  pertain 
to  a  city  council.     State  v.  Jersey 
City,  25  N.  J.  L.  53P.. 

74  People  v.  Robb,  126  N.  Y.  180 ; 
People  v.  New  York,  82  N.  Y.  491 ; 
Parish  v.  St.  Paul,  84  Minn.  426; 
In  re  Hennen,  13  Pet.  230,  10  L.  ed. 
138 ;  Willard's  Appeal,  4  R.  I.  595 ; 


200  PUBLIC   CORPORATIONS.  [§  197 

other  states,  this  rule  has  been  confirmed  by  constitution.75  But 
to  admit  of  the  application  of  this  ru4e,  the  law  must  have  given 
the  removing  tribunal  a  continuing  power  of  appointment  to  the 
office,  as  distinguished  from  a  temporary  power  exhausted  in  its 
original  exercise.76 

This  implied  authority  to  remove  vests  in  an  appointing 
executive,  even  though  his  appointments  are  subject  to  the  con- 
sent or  approval  of  a  legislative  body.  The  latter 's  concurrence 
in  the  removal  is  not  necessary.77 

§  197.  Removal :  appointive  officers :  fixed  term. — By  some 
authorities,  and  especially  in  the  federal  government,  even  when 
the  term  of  an  appointive  office  is  fixed  by  law,  if  the  matter  of 
removal  is  not  expressly  regulated  the  power  to  remove  impliedly 
vests  in  the  appointing  agency  as  in  the  case  of  an  officer  ap- 
pointed for  an  indefinite  time.  The  power  to  remove  is  said  to 
be  incident  to  the  appointing  power.78  But  the  general  view 
seems  to  be  that  an  officer  appointed  for  a  fixed  term  cannot  be 
removed  except  under  an  express  power,  or  by  judicial  process.79 
The  intent  of  the  legislature  in  each  case  is,  of  course,  the  true 
guide. 

§  198.  Removal :  right  to  hearing. — In  some  cases  a  court 
has  held  that  a  certain  officer  holding  for  an  indefinite  term  could 
not  be  removed  under  the  implied  power  vested  in  the  appoint- 

People  v.  Higgins,  15  111.  110 ;  76  Bergen  v.  Powell,  94  N.  Y.  591. 
Houseman  v.  Com.,  100  Pa.  St.  222 ;  77  Newsom  v.  Cocke,  44  Miss.  352, 
Smith  v.  Brown,  59  Cal.  672 ;  Pat-  7  Am.  Rep.  686 ;  Parsons  v.  United 
ton  v.  Vaughan,  39  Ark.  211 ;  Spon-  States,  167  U.  S.  324 ;  In  re  Hen- 
ogle  v.  Curnow,  136  Cal.  580.  Power  nen,  13  Pet.  230.  In  Carr  v.  State, 
to  remove  an  attorney  at  law  is  111  Ind.  101,  an  officer  required  to 
impliedly  reposed  in  the  court  be  appointed  by  the  Secretary  of 
which  has  power  to  admit  him  to  State  upon  requisition  of  the  sec- 
practice.  Sanborn  v.  Kimball,  64  retary  of  the  State  Board  of 
Me.  140.  The  presiding  officer  of  Health,  whose  duties  were  in  the 
a  legislative  body,  not  chosen  for  department  of  the  latter,  was  held 
a  term  fixed  by  statute,  may  be  not  to  be  removable  by  the  Secre- 
removed  at  the  pleasure  of  the  tary  of  State,  but  to  be  removable 
body.  State  v.  Kiichli,  53  Minn,  at  the  pleasure  of  the  Board. 
147,  54  N.  W.  1069,  19  L.  R.  A,  78  Parsons  v.  United  States,  167 
779 ;  State  v.  Alt,  26  Mo.  A  pp.  673.  U.  S.  324. 

75  Bergen    v.    Powell,    94    N.    Y.  79  People  v.  Healy,  231  111.  629; 

591;  Wilcox  v.  People,  90  111.  186;  State  v.  Chatburn,  63  la.  659. 
State  v.  Mitchell,  50  Kas.  289. 


§  198]  GOVERNING  BODIES,  OFFICERS  AND  AGENTS.  201 

ing  authority,  unless  he  had  been  accorded  a  hearing  and  upon 
specific  charges.  Thus,  it  was  said  that  a  court  could  not  remove 
an  attorney  at  law  except  for  misconduct  and  after  a  hearing.80 
But  such  cases  are  of  an  exceptional  nature.  As  a  general  rule, 
the  implied  power  of  removal  which  attaches  to  the  power  to 
appoint  for  an  unlimited  term  is  absolute  and  discretionary.81 

But  where  the  term  of  an  appointive  officer  is  fixed  by  law,  and 
a  power  to  remove  him  has  been  conferred  in  terms  which  do  not 
import  an  absolute  discretion,  the  officer,  by  the  weight  of 
authority,  cannot  be  removed  except  upon  charges  and  after  he 
has  been  given  an  opportunity  to  be  heard.  The  intent  of  the 
statute  is  said  to  be  to  grant  a  quasi- judicial  power  which  in- 
volves a  decision  after  notice  and  upon  definite  accusations.82 
Under  variously  worded  provisions  some  decisions  have  indicated 
a  contrary  leaning.83  And  in  the  federal  government,  the  power 
to  remove  which  attaches  to  the  power  to  appoint  is  said  to  be 
absolute,  even  where  the  office  is  for  a  fixed  term.84 

Whichever  view  a  court  may  take  of  a  provision  which  grants 
a  simple  power  to  remove  such  an  officer,  it  is  almost  unani- 
mously conceded  that  a  provision  which  expressly  limits  the 
power  of  removal  to  removal  ' '  for  cause, ' '  or  for  a  certain  class 
of  causes,  impliedly  requires  that  the  officer  be  given  prior  notice 
of  the  charges  and  an  opportunity  to  be  heard  against  them. 
Thus,  a  state  superintendent  of  schools  had  power  to  remove  a 
county  superintendent  "for  neglect  of  duty,  incompetency,  or 
immorality. ' '  He  sent  a  peremptory  notice  to  the  county  super- 
intendent removing  him  for  "neglect  of  duty  and  incompe- 
tency." It  was  held  that  the  removal  was  invalid  because  the 
county  superintendent  was  entitled  to  have  the  charges  against 

so  Sanborn   v.   Kimball,   64    Me.  82  People  v.  Treasurer,  36  Mich. 

140;  Strout  v.  Proctor,  71  Me.  288.  416;     Hallgren    v.    Campbell,    82 

si  See  cases  cited  to  §  196  in  note  Mich.  255 ;  Field  v.  Malster,  88  Md. 

74.  Where  the  power  to  remove  an  691. 

officer  is  absolute,  and  not  condi-  ss  (For  a   certain  term,   "unless 

tional  upon  the  making  of  charges  sooner  removed  by  the  governor," 

and  a  hearing,  it  may  be  exercised  etc.)     Townsend  v.  Kurtz,  S3  Md. 

in  any  mode  which  definitely  an-  331;  Eckloff  v.  District  of  Colum- 

nounces   to   him   the   intention   to  bia,  135  U.  S.  240. 

remove.    A  valid  appointment  of  a  84  Parsons  v.  United  States,  167 

successor  is  a  sufficient  exercise  of  U.  S.  324. 
the  power.    Parish  v.  St.  Paul,  84 
Minn.  426. 


202 


PUBLIC   CORPORATIONS. 


[§198 


him  specified,  and  to  be  given  a  hearing.85  "Wherever  cause 
must  be  assigned  for  the  removal  of  the  officer,  he  is  entitled  to 
notice  and  a  chance  to  defend."86  The  rule  applies  also  to 
officers  whose  term  is  "during  good  behavior."87 

Notice  may,  of  course,  be  waived  by  appearing  and  contesting 
the  charge  at  the  time  set;  and  notice,  cause,  and  hearing,  may 
all  be  waived  by  an  abandonment  of  the  office. 

A  grant  of  authority  to  remove  from  any  kind  of  office  may  be 
so  expressed  as  to  indicate  an  intention  that  the  discretion  of  the 
removing  agency  shall  be  absolute  and  unconditional;  or,  if 
cause  is  designated,  that  the  latter 's  decision  as  to  the  existence 
of  the  cause  may  be  independently  made.  In  such  a  case  the 
officer  holds  virtually  at  the  pleasure  of  the  removing  power,  and 
is  not  entitled  to  notice  and  a  chance  to  defend.88 


ss  The  county  superintendent 
was  appointed  by  a  convention  of 
county  school-directors  for  three 
years.  Field  v.  Comm.,  32  Pa.  478. 
A  city  charter  provided  that  the 
city  council  could  remove  from 
office  "for  incapacity  or  miscon- 
duct" an  officer  appointed  by  it- 
self. Charges  having  been  made 
against  an  officer,  the  council  ap- 
pointed a  committee  to  hear  all 
parties  and  report  its  finding.  The 
committee  held  a  hearing  and  made 
a  report;  and  the  testimony  taken 
was  read  to  the  council.  The  coun- 
cil thereupon  voted  to  remove.  The 
removal  was  held  invalid  because, 
though  the  officer  had  been  given 
an  opportunity  to  be  heard  by  the 
committee,  he  had  not  been  notified 
of  the  time  of  voting  in  the  coun- 
cil and  been  given  a  hearing  by  it. 
Maroney  v.  City  Council,  19  R.  I. 
2.  Under  a  provision  that  a  board  of 
aldermen  "shall  be  the  sole  judge 
of  the  qualifications,  election  and 
returns  of  its  own  members,"  it 
was  held  that  the  board  could  not 
summarily  remove  an  alderman  on 
a  charge  of  disqualification  with- 
out notifying  him  and  investigat- 
ing. Denver  v.  Darrow,  13  Colo. 


460,  16  Am.  Rep.  215.  See,  also, 
Ham  v.  Board,  142  Mass.  90;  Peo- 
ple v.  Brooklyn,  106  N.  Y.  64; 
("For  cause")  State  v.  St.  Louis, 
90  Mo.  19,  1  S.  W.  757;  ("For  offi- 
cial misconduct")  State  v.  Smith, 
35  Neb.  13,  reviewing  cases. 

se  Hallgren  v.  Campbell,  82  Mich. 
255. 

87  State  v.  Trenton,  50  N.  J.  L. 
338;  1  Dillon,  Municipal  Corp'ns 
(4th  ed.),  §250. 

ss  ("At  any  time  for  cause 
deemed  sufficient")  State  v.  Mc- 
Quade,  12  Wash.  554,  14  Pac.  897; 
("At  pleasure,"  and  "if  in  his  opin- 
ion the  public  good  requires") 
Williams  v.  Gloucester,  148  Mass. 
256;  ("When,  in  their  opinion,  he 
is  incompetent")  Trainor  v.  State 
Board,  89  Mich.  162,  15  L.  R.  A. 
95,  annotated,  where  it  was  held 
that  such  a  provision,  construed  to 
give  absolute  discretion,  did  not 
violate  the  spirit  of  a  state  con- 
stitution; ("May  at  any  time  re- 
move") State  v.  Mitchell,  50  Kas. 
289;  ("For  any  cause  deemed  suffi- 
cient to  himself")  People  v.  Wit- 
lock,  92  N.  Y.  191.  See,  also,  State 
v.  McGarry,  21  Wis.  496;  State  v. 
St.  Louis,  90  Mo.  19. 


§199] 


GOVERNING  BODIES,  OFFICERS  AND  AGENTS. 


203 


§199.  Removal:  judicial  review. — If  the  power  to  remove 
is  not  expressly  limited  to  a  designated  cause,  a  court  cannot 
without  special  jurisdiction  review  the  exercise  of  the  discretion 
to  remove,  or  judge  the  sufficiency  of  the  ground  of  removal, 
even  in  cases  where  charges  and  a  hearing  are  deemed  essential ; 
subject  to  the  limitation  that  such  a  power  must  be  reasonably 
exercised,  and  so  a  cause  assigned  for  removal  must  have  some 
reference  to  official  conduct,  or  some  bearing  upon  fitness  to  con- 
tinue in  office.89 

Neither  can  a  court  without  special  jurisdiction  review  the 
correctness  of  a  conclusion  on  the  evidence  as  to  the  existence  of 
a  specified  cause.90  But  wherever  cause  and  a  hearing  are  essen- 
tial the  officer  is  entitled  on  certiorari  or  other  proper  remedy 
to  a  review  of  the  question  of  jurisdiction,  the  regularity  of  the 
proceedings,  and,  if  removal  can  be  made  only  for  a  specified 
cause,  of  the  question  whether  the  ground  of  removal  is  within 
the  meaning  of  the  statute.91  "Whether  on  such  review  it  must 


89  Todd  v.  Dunlap,  99  Ky.  449. 

90  "The  authorities  are  all  to  the 
effect  that  a  grant  of  power  to  re- 
move either  for  cause  or  at  discre- 
tion carries  with  it  the  exclusive 
power   to   hear   and   decide;   and 
whereas    the   courts   are   entirely 
powerless  where  the  power  is  dis- 
cretionary,   they    are    equally    so 
where  it  is  for  cause,  if  the  grantee 
of  the  power  acts  within  its  limits 
and  upon  notice,  if  notice  is  re- 
quired;  if  the  removal   is  for  a 
cause  designated  by  or  falling  with- 
in the  grant,  the  grantee  or  deposi- 
tary of  the  removing  power  is  the 
sole  judge  of  the  sufficiency  of  the 
evidence  to  justify  the  removal." 
State  v.  Johnson,  30  Fla.  433,  18 
L.  R.  A.  414. 

»i  State  v.  Prince,  45  Wis.  610. 
An  adjudication  of  the  existence 
of  the  cause  must  actually  appear 
to  have  been  made.  See  Andrews 
v.  King,  77  Me.  224.  "Immorality" 
as  ground  for  removing  a  police 
officer  Includes  seduction.  Queen 


v.  Atlanta,  39  Ga.  318;  "Immoral- 
ity" as  applied  to  a  regent  of  a 
state  university  was  held  to  in- 
clude addiction  to  the  use  of  intoxi- 
cating liquors.  Rogers  v.  Morrill, 
55  Kan.  737,  42  Pac.  555.  ("Con- 
duct unbecoming  an  officer ;"  police 
officer)  Clapp  v.  Board,  92  N.  Y. 
415.  "Misconduct"  which  will  jus- 
tify removal  must  consist  of  acts 
and  conduct  relating  to  the  office 
from  which  the  removal  is  sought. 
Speed  v.  Detroit,  98  Mich.  360,  22 
L.  R.  A.  842.  A  register  of  deeds 
may  be  removed  for  making  a  false 
certificate  as  to  the  condition  of 
the  title,  although  the  making  of 
such  certificate  is  not  part  of  the 
duties  of  his  office.  State  v.  Leach, 
60  Me.  58,  11  Am.  Rep.  172.  Re- 
ceiving a  bribe  is  "disorderly  con- 
duct" within  the  meaning  of  a  pro- 
vision conferring  upon  the  council 
authority  to  expel  a  member  for 
disorderly  conduct.  State  v.  Jer- 
sey City,  25  N.  J.  L.  536.  An  ex- 
pelled member  of  a  city  council 


204 


PUBLIC   CORPORATIONS. 


[§200 


appear  that  evidence  was  introduced  to  sustain  the  charges,  or 
that  the  decision  to  remove  was  not  contrary  to  the  weight  of  the 
evidence,  or  was  properly  based  on  the  evidence  heard  rather 
than  on  the  personal  knowledge  of  the  removing  officer,  are 
questions  which  must  be  decided  under  particular  provisions  and 
practices.92 

§  200.  Manner  of  trying  title  to  office. — The  title  to  an  office 
cannot  be  determined  in  a  collateral  proceeding,  although  suffi- 
cient inquiry  may  be  made  to  determine  whether  the  occupant 
is  a  mere  intruder.93  If  one  in  possession  of  an  office  seeks  to 
have  a  court  review  the  proceeding  of  a  board  of  aldermen 
which  interferes  with  his  enjoyment  of  the  office,  the  proper 
remedy  is  certiorari.  When  the  title  of  one  in  possession  is  to 
be  tried,  the  proper  remedy  is  quo  warranto  and  not  man- 
damus.94 The  title  to  an  office  cannot  be  tried  in  an  action  of 
replevin  for  property  belonging  to  the  office.  As  a  general  rule 
the  appropriate  remedy  for  the  particular  case  is  provided  by 
statute.95 


may  be  re-elected,  and  cannot 
thereafter  be  again  expelled  for 
the  same  offense.  State  v.  Jersey 
City,  supra. 

82  See  e.  g.  People  v.  French,  119 
N.  Y.  502. 

»s  United  States  v.  Alexander,  46 
Fed.  728. 

»4  Denver  v.  Darrow,  13  Colo. 
460,  16  Am.  St.  215,  and  note. 
The  writ  of  mandamus  being  a  pre- 
rogative writ  and  not  a  writ  of 
right  may  be  granted  or  not,  in  the 
discretion  of  the  court.  Reg.  v. 
Churchwardens,  1  App.  Cas.  611, 
35  L.  T.  381.  That  quo  warranto 
is  the  appropriate  remedy  to  settle 
title  to  office  conclusively,  see  Rex 
v.  Mayor  of  Colchester,  2  T.  R. 
259,  7  Eng.  Rul.  Cas.  328 ;  Leeds  v. 
Atlantic  City,  52  N.  J.  L.  333 ;  Mat- 
ter of  Gardner,  68  N.  Y.  467; 
Duane  v.  McDonald,  41  Conn.  517 ; 
St.  Louis  Co.  Court  v.  Sparks,  10 
Mo.  117,  45  Am.  Dec.  355;  Bonner 
v.  State,  7  Ga.  473;  People  v.  Kil- 
duff,  15  111.  492;  Frey  v.  Michie, 


68  Mich.  323;  State  v.  Choate,  11 
Ohio  511;  State  v.  De  Gress,  53 
Tex.  387;  Com.  v.  Meeser,  44  Pa. 
St.  341;  State  v.  Dunn,  Minor,  46, 
12  Am.  Dec.  25 ;  State  v.  Gates,  86 
Wis.  634,  39  Am.  St.  912;  Brown 
v.  Turner,  70  N.  C.  93.  In  some 
states  mandamus  is  used  for  this 
purpose.  See  Luce  v.  Board  of 
Examiners,  153  Mass.  108;  Dew  v. 
Judges,  3  Hen.  &  Munf.  1,  3  Am. 
Dec.  639;  Harwood  v.  Marshall,  9 
Md.  83;  Lawrence  v.  Ingersoll,  88 
Tenn.  52,  17  Am.  St.  870;  Boston 
v.  Wilson,  4  Tex.  400.  "Quo  war- 
ranto lies  to  oust  an  illegal  in- 
cumbent from  an  office,  not  to  in- 
duct the  legal  officer  into  it."  State 
v.  Sone,  16  R.  I.  620.  The  validity 
of  the  acts  of  an  officer  de  facto  can 
be  questioned  only  by  a  direct  pro- 
ceeding in  quo  warranto  to  deter- 
mine title  to  his  office.  Walcott  v. 
Wells,  21  Nev.  47,  37  Am.  St.  478. 
»5  Hallgren  v.  Campbell,  82  Mich. 
255,  9  L.  R.  A.  408. 


CHAPTER  XVI. 


CONTRACT  LIABILITIES. 


I.  PUBLIC  OFFICEBS. 
§201.  Liability  for  loss  of  public 

funds. 

202.  Personal    liability    on    con- 
tracts. 

II.  PUBLIC  CORPORATIONS. 
§203.  General  liability. 

204.  Presentation  and  demand. 

205.  The  doctrine  of  ultra  vires. 

206.  Estoppel — Contract  executed 

by  one  party. 


§  207.  Contract    within    scope    of 
general  powers. 

208.  Contract  in  part  ultra  vires. 

209.  Liability    on    implied    con- 

tract. 

210.  Illustrations. 

211.  Eight  to  recover  back  illegal 

taxes. 

212.  Payment   must   be   compul- 

sory. 

213.  Voluntary  payment. 


I.    PUBLIC  OFFICERS. 

§  201.  Liability  for  loss  of  public  funds. — In  some  states  an 
officer  is  regarded  as  the  debtor  of  the  corporation  and  not  as  a 
bailee  or  trustee  of  funds  intrusted  to  his  care,  and  is  liable  for 
such  funds,  without  reference  to  the  cause  of  their  loss.  This  is 
the  rule  of  liability  in  those  states  where  the  officer  has  the  right 
to  use  the  money  as  his  own  and  to  retain  any  interest  or  profit 
that  the  funds  may  earn.  It  has  no  application  where  the  officer 
is  considered  as  a  trustee  charged  with  certain  duties  and  re- 
sponsibilities and  where  he  is  held  to  have  no  right  to  the  income 
of  the  funds.  In  some  states  it  is  made  a  felony  for  the  officer 
to  use  the  public  funds  directly  or  indirectly,  or  to  receive  or  to 
agree  to  receive  interest  for  their  use  or  deposit.1  In  other  cases 
the  officer  is  held  liable  on  broad  grounds  of  public  policy,  and 
the  obligations  resting  upon  him  are  made  absolute  and  uncon- 
ditional because  a  different  construction  would  open  up  the  door 
for  fraudulent  practices  and  evasions  by  public  officials.  Many 
of  the  cases  holding  officials  liable  for  public  funds,  lost  without 
their  fault  or  negligence,  are  decided  under  local  statutes,  but  a 
number  of  them  rest  squarely  on  principles  of  public  policy. 
"It  shocks  the  sense  of  justice,"  said  the  court  in  a  recent  case,2 

i  State  v.  Copeland,  96  Tenn.  296,  2  Tillinghast  v.  Merrill,  151  N. 
31  L.  R.  A.  844.  Y.  135,  34  L.  R.  A.  678. 


205 


206  PUBLIC   CORPORATIONS.  [§  201 

"that  the  public  officials  should  be  held  to  any  greater  liability 
than  the  old  rule  of  the  common  law  which  exacted  proof  of  mis- 
conduct or  neglect.  It  is  at  this  point,  however,  that  the  question 
of  public  policy  presents  itself,  and  it  may  well  be  asked  whether 
it  is  not  wiser  to  subject  a  custodian  of  the  public  moneys  to  the 
strictest  liability,  rather  than  open  the  door  for  the  perpetration 
of  fraud  in  numberless  ways  impossible  of  detection,  thereby 
placing  in  jeopardy  the  enormous  amount  of  the  public  funds 
constantly  passing  through  the  hands  of  disbursing  agents." 
Hence  the  court  in  this  case  held  that  a  supervisor  who  acted 
in  good  faith  and  without  negligence  was  liable  for  public  moneys 
lost  by  the  failure  of  a  firm  of  private  bankers  with  whom  the 
money  had  been  deposited.  In  other  cases  the  liability  of  the 
officer  is  made  to  turn  upon  the  terms  of  his  bond,  and  is  con- 
strued as  having  been  enlarged  by  the  bond  and  made  an  absolute 
engagement  to  pay  over  the  money  in  any  event  and  under  every 
contingency.  This  rule  has  been  adopted  in  many  cases  on  the 
authority  of  an  important  decision  of  the  supreme  court  of  the 
United  States,  where  it  was  held  that  an  officer  under  bond  to 
' '  keep  safely ' '  must  make  good  the  public  funds  stolen  from  him 
without  his  fault.3  This  stringent  rule  was  modified,  however, 

»  United    States    v.    Prescott,   3  from  the  office  or  house  of  the  offi 

How.  (44  D.  S.)  578.    To  the  same  cial,  in  some  cases  where  it  had 

effect  are  United  States  v.  Dashiel  been  placed  in  a  private  safe,  and 

4    Wall.    (71   U.   S.)    182;   United  in  others  where  it  had  been  taken 

States  v.  Morgan,  11  How.  (52  U.  from  a  safe  furnished  by  the  coun- 

S.)   154;  Boyden  v.  United  States,  ty.    The  same  rule  has  been  adopt- 

13  Wall.    (80  U.  S.)   17;  State  v.  ed   in   other  instances   where  the 

Nevins,  19  Nev.  162,  3  Am.  St.  873 ;  money  had  been  lost  through  the 

State  v.  Lanier,  31  La.  Ann.  423;  failure  of  a  bank  in  which  it  bad 

Jefferson  Co.  Com'rs  v.  Lineberger,  been   deposited.     State   v.    Moore, 

3  Mont.  231,  35  Am.  Rep.  562 ;  Red-  74    Mo.    413,    41    Am.    Rep.    322; 

wood  Co.  Com'rs  v.  Tower,  28  Minn.  Adams  v.  Lee,  72  Miss.  281,  16  So. 

45;   State  v.   Blair,  76  N.   C.  78;  242;   State  v.   Powle.  67  Mo.  395, 

Hancock  v.  Hazzard,  12  Cush,  112,  29  Am.  Rep.  512;  Ward  v.  Colfax 

59  Am.  Dec.  171 ;  State  v.  Harper,  Co.,  10  Neb.  293,  35  Am.  Rep.  477 ; 

6  Ohio  St.  607,  67  Am.  Dec.  363.  Lowry  v.  Polk  Co.,  51  Iowa,  50,  33 

Contra,    Healdsburg    v.    Mulligan,  Am.  Rep.  113;   State  v.  Croft,  24 

113  Cal.  205,  45  Pac.  337,  33  L.  R.  Ark.  560;   Havens  v.  Lathene,  75 

A.  461.    These  are  principally  cases  N.  C.  505. 
where  the  money  had  been  stolen 


§201] 


CONTRACT   LIABILITIES. 


207 


in  a  later  decision  of  that  tribunal,  where  it  was  held  that  an 
officer  was  excused  by  the  act  of  God  or  the  public  enemy.4 

The  tendency  of  some  authorities  is  to  revert  to  the  common 
law  rule  of  liability  and  to  hold  the  officer  intrusted  with  public 
funds,  not  an  insurer  against  loss,  but  "liable  only  if  he  acts 
without  proper  diligence,  caution,  prudence  and  good  faith." 
' '  We  believe, ' '  said  the  court  in  one  case,5  ' '  the  true  rule  is  that 
a  public  officer  who  receives  money  by  virtue  of  his  office  is  a 
bailee  and  that  the  extent  of  his  obligation  is  that  imposed  by 
law ;  that  when  unaffected  by  constitutional  or  legislative  provi- 
sions his  duty  and  liability  is  measured  by  the  law  of  bailment. 
If  a  more  stringent  obligation  is  desired,  it  must  be  prescribed 
by  statute.  That  his  official  bond  does  not  extend  such  obligation, 
but  its  office  is  to  secure  the  faithful  and  prompt  performance  of 
his  legal  duties." 


*  United  States  v.  Thomas,  15 
Wall.  (82  U.  S.)  337.  Swayne, 
Miller  and  Strong,  J.  J.,  dissented. 
Mr.  Justice  Bradley,  delivering  the 
opinion  of  the  majority  in  this  case, 
and  treating  of  the  contention  that 
the  bond  forms  the  basis  of  a  new 
rule  of  responsibility,  called  atten- 
tion to  the  distinction  between  an 
absolute  agreement  to  do  a  thing 
and  a  condition  to  do  the  same 
thing  inserted  in  a  bond,  and  said : 
"The  condition  of  an  official  bond 
is  collateral  to  the  obligation  or 
penalty;  it  is  not  based  on  a  prior 
debt  nor  is  it  evidence  of  a  debt, 
and  the  duty  secured  thereby  does 
not  become  a  debt  until  default  is 
made  on  the  part  of  the  principal. 
Until  then,  as  we  have  seen,  he  is 
a  bailee,  though  a  bailee  resting 
under  special  obligations.  The 
condition  of  his  bond  is  not  to  pay 
a  debt  but  to  perform  a  duty  about 
and  respecting  certain  specific  prop- 
erty which  is  not  his,  and  which 
he  cannot  use  for  his  own  pur- 
poses." 

s  Wilson    v.    People,    Pueblo    & 


A.  V.  R.  Co.,  19  Colo.  199,  22  L.  B. 
A.  449.  See  cases  cited  where,  by 
the  constitution  and  the  statutes, 
the  common-law  liability  of  cer- 
tain officers  was  increased.  State 
v.  Walsen,  17  Colo.  170;  McClure 
v.  La  Platte  Com'rs,  19  Colo.  122. 
In  York  County  v.  Watson,  15  S. 
C.  1,  40  Am.  Rep.  675,  a  county 
treasurer  was  held  not  responsible 
for  public  moneys  deposited  in  a 
bank  which  had  borne  a  good  repu- 
tation. The  court  said  that  the 
public  officer  was  no  more  respon- 
sible than  a  private  trustee  would 
be  under  like  circumstances.  IB 
Cumberland  County  v.  Pennell,  69 
Me.  357,  31  Am.  Rep.  284  (three 
judges  dissenting),  a  county  treas- 
urer was  held  not  liable  for  money 
taken  from  his  safe  in  his  office 
by  robbers  who  had  first  beaten 
him.  See,  also,  Strout  v.  Pennell, 
74  Me.  at  262;  State  v.  Houston, 
78  Ala.  576,  56  Am.  Rep.  59 ;  State 
v.  Copeland,  96  Tenn.  296,  31  L.  R. 
A.  844;  Healdsburg  v.  Mulligan, 
113  Cal.  205,  45  Pac.  337,  33  L.  R. 
A.  461. 


208  PUBLIC   CORPORATIONS.  [§202 

§202.  Personal  liability  on  contracts. — The  courts  are  fre- 
quently called  upon  to  determine  the  personal  liability  of 
municipal  officers  upon  instruments  signed  by  such  officers  with 
their  official  designation  added.  If  such  instruments  are  made 
with  authority  and  intent  to  bind  the  municipality,  the  corpora- 
tion is  liable.  But  both  the  corporation  and  officer  may  be  liable 
on  the  same  instrument.  If,  for  example,  the  selectmen  of  a 
town  offer  a  reward  for  the  arrest  and  conviction  of  a  criminal, 
and  such  public  officers  sign  their  names  individually,  with  the 
designation  "Selection  of  Milton,"  they  do  not,  by  adding  their 
official  designation,  take  away  from  their  names  their  ordinary 
significance  as  proper  names,  and  make  of  their  collective  signa- 
tures a  composite  unit.  The  promise  being  otherwise  in  the 
usual  and  proper  form  for  a  personal  undertaking,  they  are  per- 
sonally liable.6  If  it  appears  from  the  instrument  that  the  officer 
did  not  intend  to  assume  personal  liability,  he  will  not  be  ren- 
dered liable  by  the  fact  that  the  instrument  is  invalid  in  so  far 
as  it  purports  to  bind  the  corporation.7  But  where  the  signers 
of  the  note  made  the  promise  ' '  as  trustees  of  school  district ' '  they 
are  not  individually  liable,  the  intention  to  bind  the  school  dis- 
trict being  plain.8  If  the  promise  of  a  public  agent  is  connected 
with  a  subject  fairly  within  the  scope  of  his  authority,  it  will  be 
presumed  to  have  been  made  officially  and  in  his  public  character, 
unless  it  clearly  appears  that  he  intended  to  bind  himself  person- 
ally.9 For  example,  if  gravel  is  sold  on  the  credit  of  the  town  upon 
the  order  of  a  surveyor  of  highways  who  has  authority  to  make 
the  purchase,  the  town  and  not  the  surveyor  is  responsible.10  But 
if  an  overseer  of  the  poor,  in  contracting  for  the  support  of  a 
pauper,  engages  that  he  will  be  responsible  for  the  payment  of  the 
charges,  and  credit  is  given  on  his  personal  promise,  he  is  liable.11 

II.    PUBLIC  CORPORATIONS. 

§203.  General  liability. — A  public  corporation  is  liable 
upon  a  contract,  which  is  within  the  scope  of  its  chartered  powers 

e  Brown  v.  Bradlee,  156  Mass.  28,  10  Brown  v.  Rundlett,  15  N.  H. 

30  N.  E.  85,  15  L.  R.  A.  509.  300.     And  see  Hall  v.  Lauderdale, 

T  Willitt  v.  Young,  82  Iowa,  292,  46  N.  Y.  70. 

47  N.  W.  990,  11  L.  R.  A.  115.  n  Ives    v.    Hulet,    12    Vt.    314 ; 

sSanborn  v.  Neal,  4  Minn.  126,  King  v.  Butler,  15  Johns   (N.  Y.) 

77  Am.  Dec.  502 ;  Lyon  v.  Adamson,  281. 
7  Iowa,  509. 

»  Parks  v.  Ross,  11  How.  (U.  S.) 
362. 


§204] 


CONTRACT   LIABILITIES. 


209 


and  has  been  duly  made  by  the  proper  officers,  in  the  same  man- 
ner and  to  the  same  extent  as  a  private  corporation  or  a  natural 
person.  It  may  be  sued  like  any  individual,  and  may  resort  to 
the  courts  to  enforce  its  rights  and  redress  its  wrongs.12 

§  204.  Presentation  and  demand. — Municipal  charters  ordi- 
narily contain  a  provision  that  no  action  shall  be  commenced  on 
any  "claim"  or  "claim  or  demand"  until  the  same  shall  have 
been  presented  for  allowance  to  the  city  council.13  Similar  pro- 
visions often  limit  the  time  within  which  an  action  may  be 
brought  against  the  corporation.14  While  the  words  "claim" 
and  "demand"  have  a  very  wide  significance,  they  are  not 
usually  construed  as  including  claims  arising  out  of  torts.15  At 
common  law  it  is  not  necessary  to  present  a  claim  arising  in  tort 
before  bringing  suit.16  If  the  council  neglects  to  act  upon  a 
demand  within  the  sixty  days  fixed  by  the  charter,  it  is  equiv- 
alent to  a  refusal  to  allow  it.17 

§205.  The  doctrine  of  ultra  vires. — A  public  corporation 
derives  all  its  powers  from  its  charter,  and  the  general  rule  is 
that  it  cannot  bind  itself  by  any  contract  in  excess  of  the  powers 
thus  conferred  upon  it.18  Hence  it  necessarily  follows  that  ultra 


12  Buffalo  v.  Bettinger,  76  N.  Y. 
393. 

is  Kelley  v.  Madison,  43  Wis.  638. 

i^McGaffln  v.  Cohoes,  74  N.  5". 
387. 

i5  Nance  v.  Falls  City,  16  Neb. 
85 ;  Flieth  v.  Wausau,  93  Wis.  448, 
67  N.  W.  729. 

i«  Green  v.  Spencer,  67  Iowa,  410, 
25  N.  W.  681. 

IT  Fleming  v.  Appleton,  55  Wis. 
00,  12  N.  W.  462. 

is  City  of  Eufaula  v.  McNab,  67 
Ala.  588;  Swift  v.  Falmouth,  167 
Mass.  115,  45  N.  E.  184 ;  Alleghaney 
Co.  v.  Parrish,  93  Va.  615,  25  S.  E. 
882.  Much  of  the  apparent  con- 
fusion in  the  law  of  ultra  vires  is 
due  to  the  use  of  the  words  in 
different  senses.  It  is  used  to 
characterize  (1)  an  act  of  the 
directors  or  officers  in  excess  of 
their  authority  as  agents  of  the 

li 


corporation ;  (2)  an  act  of  the  ma- 
jority of  the  stockholders  in  vio- 
lation of  the  rights  of  the  minority ; 

(3)  an  act  done  in  disregard  of 
the  requirements  of  the  charter; 

(4)  an  act  which  the  corporation 
has  not  the  power  to  do,  as  being 
in  excess  of  the  corporate  powers. 
In  a  recent  work  it  is  said :    "For 
a  time  there  was  an  element  of  un- 
certainty appearing  in  the  views 
expressed    by    the    courts,    as    to 
whether  or  not  the  doctrine  should 
be  applied  only  to  the  acts  of  a 
corporation  as  such,  or  whether  it 
should  not  also  be  applied  to  acts 
of  the  directors  or  officers  which 
were  in   excess  of   the  authority 
given  them  in  the  management  of 
the  internal  affairs  of  the  corpora- 
tion.   In  the  former  sense  only  is 
the  doctrine  legitimately  applica- 
ble."   Reese,  Ultra  Vires,  §17.    In 


210 


PUBLIC   CORPORATIONS. 


[§206 


vires  contracts  are  not  enforceable.19  This  doctrine  has  with 
good  reason  been  applied  with  greater  strictness  to  municipal 
bodies  than  to  private  corporations,  and  in  general  a  municipal- 
ity is  not  estopped  from  denying  the  validity  of  a  contract  made 
by  its  officers  when  there  was  no  authority  for  the  making  of  such 
contract.20  The  harshness  of  the  rule  has  in  practice  led  to  the 
adoption  of  certain  modifications  which  seem  necessary  in  order 
to  do  justice  between  the  parties.  It  has  thus  been  materially 
modified  by  the  application  of  the  doctrines  of  estoppel  and  im- 
plied contract. 

§206.    Estoppel — Contract   executed  by   one   party. — The 

general  rule  is  that  there  can  be  no  estoppel  when  the  contract  is 
illegal  in  the  sense  of  being  forbidden  by  law,  or  where  there  is 
a  total  want  of  power  on  the  part  of  the  corporation.21  But 
where  an  act  is  such  that  in  its  external  aspects  it  appears  to  be 
within  the  general  powers  of  a  corporation,  but  is  unauthorized 
because  it  is  done  with  a  secret  unauthorized  purpose,  the  de- 
fense of  ultra  vires  will  not  avail  against  a  stranger  who  in  good 


Camden,  etc.  R.  Co.  v.  May's  Land- 
ing, etc.  Co.,  48  N.  J.  L.  530,  the 
court  said:  "In  its  legitimate  use, 
the  expression  ultra  vires  should 
be  applied  only  to  such  acts  as  are 
beyond  the  powers  of  the  corpora- 
tion itself."  See  dissenting  .opin- 
ion. In  Chicago,  etc.  R.  Co.  v. 
Union  Pac.  R.  Co.,  47  Fed.  15,  Mr. 
Justice  Brewer  said:  "Two  prop- 
ositions are  settled.  One  is  that  a 
contract  by  which  a  corporation 
disables  itself  from  performing  the 
functions  and  duties  undertaken 
and  imposed  by  its  charter  is,  un- 
less the  state  which  creates  it  con- 
sents, ultra  vires.  *  *  *  The 
other  is  that  the  powers  of  a  cor- 
poration are  such  and  such  only, 
as  its  charter  confers;  and  an  act 
beyond  the  measure  of  those  powers 
as  either  expressly  stated  or  fairly 
implied  is  ultra  vires.  *  *  * 
These  two  propositions  embrace 
the  whole  doctrine  of  ultra  vires. 
They  are  its  alpha  and  omega." 


"Cooley,  Const.  Lim.   (7th  ed.), 
p.  272 ;  Dillon,  Mun.  Corp.,  I,  §  457. 

20  Newberry  v.  Fox,  37  Minn.  141, 
33  N.  W.  333,  51  Am.  St.  830;  Mo- 
bile v.  Moog,  53  Ala.  561 ;  Sutro  v. 
Pettit,  74  Cal.  332,  5  Am.  St.  442; 
Thompson,  Corp.,  V,  §  5969.    For  a 
strict  application   of  the  rule  see 
Mayor  of  Nashville  v.  Sutherland, 
92  Tenn.  335,  21  S.  W.  674,  19  L. 
R.  A.  619. 

21  In  King  v.  Mahaska  Co.,  75 
Iowa,  329,  it  was  held  that  a  con- 
tractor for  the  building  of  a  court- 
house could  not  recover  for  extra 
work  where  it  created  a  cost  in 
excess  of  the  amount  which  the 
people  had  voted  for  the  law.    In 
Goose  River  Bank  v.  Willow  Lake 
School  Township,  1  N.  Dak.  26,  it 
was  held  that  a  school  teacher  who 
lacked   the  necessary  legal   quali- 
fications   could    not    recover    for 
services     rendered.       Bloomsburg 
Imp.  Co.  v.  Bloomsburg,  215  Pa.  St. 
452,'  64  Atl.  602. 


§206] 


CONTRACT  LIABILITIES. 


211 


faith  dealt  with  the  corporation  without  notice  of  such  intent.22 
Although  there  is  some  conflict  of  authorities,  the  logical  rule 
would  seem  to  be  that,  when  the  corporation  is  estopped  to  assert 
the  defense  of  ultra  vires,  the  liability  thus  enforced  is  on  the 
contract.23  Thus,  it  was  held  that  "although  there  may  be  a 
defect  of  power  in  a  corporation  to  make  a  contract,  if  a  contract 
made  by  it  is  not  in  violation  of  the  charter  of  the  corporation, 
or  of  any  statute  prohibiting  it,  and  the  corporation  has  by  its 
promise  induced  a  party,  relying  on  such  promise  and  in  execu- 
tion of  the  contract,  to  expend  money  and  perform  his  part 
thereof,  the  corporation  is  liable  on  the  contract.'"24  But  by  the 
weight  of  authority  the  so-called  estoppel  which  is  applied  by 
some  courts  where  a  private  corporation  has  accepted  perform- 
ance of  a  contract  and  seeks  to  defend  on  the  ground  of  ultra 
vires,  is  not  applicable  in  the  case  of  a  public  corporation.  By 
many  courts  even  a  liability  as  on  a  quantum  meruit,  for  services 
performed  or  materials  furnished,  is  denied.  It  is  said  that  the 
equities  of  the  helpless  public  are  stronger,  in  such  cases,  than 
those  of  the  contracting  party.25  A  party  who  is  sued  on  a  con- 
tract with  a  city  may  defend  on  the  ground  that  the  city  had 
no  power  to  make  the  contract.26  There  can  be  no  recovery  upon 


22  Dillon,  Mun.  Corp.  I,  §936. 

23  it  is  uncertain  whether  there 
is  an  action  on  the  contract.     See 
Dillon,  Mun.  Corp.,  I,  §444,  note, 
and  the  cases   cited   in   the  next 
note ;  Thompson,  Corp.,  V,  §  5968 ; 
Central  Tp.  Co.  v.  Pullman  Palace 
Car  Co.,  139  U.  S.  22. 

24  State  Board  of  Agriculture  v. 
Citizens'  St.  Ry.  Co.,  47  Ind.  407, 
17  Am.  Rep.  702.    This  language  is 
quoted  with  approval  by  Mr.  Jus- 
tice Strong  in  Hitchcock  v.   Gal- 
veston,  96  U.  S.  351,  in  Columbus 
Water  Works  v.  Mayor  of  Colum- 
bus, 48  Kan.  99,  15  L.  R.  A.  354, 
and  in  Illinois  Tr.  &  Sav.  Bank  v. 
Arkansas  City,  76  Fed.  271,  40  U. 
S.  App.  257,  34  L.  R.  A.  518.     In 
Boss  Machine  Works  v.  Park  Co. 
Com'rs,    115   Ind.    234,    the   court 
said:    "The  doctrine  of  ultra  vires 
does  not  absolve  municipal  corpo- 


rations from  the  principle  of  com- 
mon honesty." 

25  Cleveland  School  Furniture  Co. 
v.  Greenville,  146  Ala.  559,  41  So. 
862 ;  Eufala  v.  McNab,  67  Ala.  588, 
42  Am.  Rep.  118;  Zottmon  v.  San 
Francisco,    20    Cal.    96;    Citizen's 
Bank  v.  Spencer,  126  Iowa,  101, 101 
N.  W.  643;  Hope  v.  Alton,  214  111. 
102,  73  N.  E.  406 ;  State  v.  Murphy, 
134  Mo.  548,  31  S.  W.  784,  34  S.  W. 
51,  35  S.  W.  1132,  56  Am.  St.  Rep. 
515,  34  L.  R.  A.  369;  Higgins  v. 
San  Diego  Water  Co.,  118  Cal.  524, 
45  Pac.  824,  50  Pac.  670;  (borrowed 
money)    Mayor   v.  Ray,   19  Wall. 
468;     Bloomsburg     Imp.     Co.     v. 
Bloomsburg,   215    Pa.    St.   452,    64 
Atl.  602. 

26  Montgomery    City    Council    v. 
Montgomery,  etc.  Ry.  Co.,  31  Ala. 
76. 


212  PUBLIC   COEPOEATIONS.  [  §  207 

a  contract  which  is  illegal  in  the  sense  of  being  absolutely  pro- 
hibited by  law.27 

§207.  Contracts  within  scope  of  general  powers. — Cities 
often  enter  into  contracts  which,  in  their  purposes,  are  within 
the  scope  of  their  general  powers,  but  which  are  made  in  an  ir- 
regular manner,  or  contain  ultra  vires  conditions  or  provisions. 
A  mere  irregularity  in  the  manner  of  exercising  or  preceding  the 
exercise  of  power  cannot  always  be  asserted  as  a  defense  against 
one  who  has  in  good  faith  parted  with  value  for  the  benefit  of  the 
corporation.28  In  a  well  known  case  29  it  appeared  that  the  city 
had  entered  into  a  contract  with  certain  contractors,  by  the  terms 
of  which  they  were  to  pave  its  streets  and  receive  the  negotiable 
bonds  of  the  city  in  payment  therefor.  The  city  had  power  to 
pave  the  streets  but  not  to  issue  the  bonds.  In  an  action  for 
damages  for  a  breach  of  the  contract  the  court  said:  "The 
present  is  not  a  case  in  which  the  issue  of  the  bonds  was  prohib- 
ited by  any  statute.  At  most,  the  issue  was  unauthorized.  At 
most,  there  was  a  defect  of  power.  The  promise  to  give  bonds  to 
the  plaintiffs  in  payment  of  what  they  undertook  to  do  was 
therefore,  at  farthest,  only  ultra  vires ;  and,  in  such  a  case,  though 
specific  performance  of  an  engagement  to  do  a  thing  transgres- 
sive  of  its  corporate  power  may  not  be  enforced,  the  corporation 
can  be  held  liable  on  its  contract.  Having  received  benefit  at  the 
expense  of  the  other  contracting  party,  it  cannot  object  that  it 
was  not  empowered  to  perform  what  it  promised  in  return  in  the 
mode  in  which  it  promised  to  perform."  Elsewhere  the  court 
said :  ' '  They  are  not  suing  upon  the  bonds,  and  it  is  not  neces- 
sary to  thsir  success  that  they  should  assert  the  validity  of  those 
instruments.  It  is  enough  for  them  that  the  city  council  have 

27  McDonald  v.  New  York,  68  N.  because  of  some  particular  circum- 
Y.  23,  23  Am.  Rep.  144 ;  Argenti  v.  stance,  is  fully  explained  by  Chief 
San  Francisco,  16  Cal.  256.  Justice   Sawyer   in   Miner's   Ditch 

28  (Directory  requirement)  Moore  Co.  v.  Zellerbach,  37  Cal.  543,  99 
v.  New  York,  73  N.  Y.  238.     The  Am.   Dec.   300      See,   also,   North- 
distinction  in  cases  of  private  cor-  western  Union  Packet  Co.  v.  Shaw, 
porations  between  cases  where  the  37  Wis.  655, 19  Am.  Rep.  781.  Corn- 
contract  is  entirely  outside  of  the  pare,  Zottman  v.  San  Francisco,  20 
granted   powers   and   cases   where  Cal.  96;  Wormstead  v.  Lynn,  184 
the  particular   contract   is   within  Mass.  425,  68  N.  E.  841. 

the    general    scope    of    the    cor-        w  Hitchcock  v.  Galveston,  96  U. 
porate   powers,    but   unauthorized     S.  341. 


§  208]  CONTRACT   LIABILITIES.  213 

power  to  enter  into  a  contract  for  the  improvement  of  the  side- 
walks; that  such  a  contract  was  made  with  them;  that  under  it 
they  have  proceeded  to  furnish  materials  and  do  work  as  well  as 
to  assume  liabilities ;  that  the  city  has  received  and  now  enjoys 
the  benefit  of  what  they  have  done  and  furnished ;  that  for  these 
things  the  city  promised  to  pay ;  and  that  after  having  received 
the  benefit  of  the  contract  the  city  has  broken  it.  It  matters  not 
that  the  promise  was  to  pay  in  a  manner  not  authorized  by  law. 
If  payments  cannot  be  made  in  bonds  because  their  issue  is  ultra 
vires,  it  would  be  sanctioning  rank  injustice  to  hold  that  payment 
need  not  be  made  at  all.  Such  is  not  the  law.  The  contract  be- 
tween the  parties  is  in  force  so  far  as  it  is  lawful." 

§  208.  Contract  in  part  ultra  vires. — A  contract  is  not  nec- 
essarily invalid  as  a  whole  because  a  part  thereof  is  ultra  vires. 
It  is  said  that  a  court  should  not  destroy  a  contract  made  by 
parties  further  than  some  good  reason  requires.30  Thus,  where 
a  city  had  power  to  provide  for  gas,  and  entered  into  a  contract 
with  a  corporation  to  furnish  it  for  the  city,  and  as  a  part  of  the 
contract  granted  to  the  corporation  the  exclusive  right  to  use  the 
streets,  it  was  held  that  the  granting  of  the  exclusive  franchise 
was  beyond  the  power  of  the  city.  But  the  court  said:31  "No 
reason  occurs  to  us  why,  under  this  state  of  facts,  the  gas  com- 
pany or  its  successors  may  not  waive  the  exclusive  right  and  re- 
cover the  remainder  of  the  consideration  which  the  city  promised 
to  pay.  The  grant  of  this  exclusive  right  was  neither  immoral 
nor  illegal.  It  was  merely  ultra  vires.  We  know  of  no  rule  of 
law  nor  of  morals  which  relieves  the  recipient  of  the  substantial 
benefits  of  a  partially-executed  contract  from  the  obligation  to 
perform  or  pay  that  part  of  the  consideration  which  he  can  per- 
form or  pay  because  the  performance  of  an  insignificant  portion 
of  it  is  beyond  his  power.  On  the  other  hand,  the  true  rule  is  and 
ought  to  be  the  converse  of  that  proposition.  It  is  that  when  a 
part  of  a  divisible  contract  is  ultra  vires,  but  neither  malum  in  se 

so  in  East  St.  Louis  v.  East  St.  ly   furnished.     See  the  statement 

Louis  Gas  Co.,  98  111.  415,  it  ap-  of  the  rule  in  Brown  v.  Atchison, 

peared  that  the  city  had  entered  39  Kan.  54. 

into  a   contract  to  furnish   lights         si  Illinois  Trust  &  Sav.  Bank  v. 

for  a  number  of  years.    This  con-  Arkansas  City,  76  Fed.  271,  40  TJ. 

tract  was  held  beyond  its  powers,  S.  App.  257,  34  L.  R.  A.  518  (San- 

but  the  court  held  that  there  could  born,  J.). 
be  a  recovery  for  the  lights  actual- 


214  PUBLIC   COEPOEATIONS.  [§  209 

nor  malum  prohibitum,  the  remainder  may  be  enforced,  unless  it 
appears  from  a  consideration  of  the  whole  contract  that  it  would 
not  have  been  made  independently  of  the  part  which  was  void."32 

§  209.  Liability  on  implied  contract. — The  strict  doctrine  of 
ultra  vires  is  further  modified  by  the  rule  that  when  a  contract 
has  been  performed  by  one  party  and  money  or  property  has  thus 
come  into  the  possession  of  the  corporation  and  been  applied  to 
its  use,  the  law  presumes  a  contract  to  restore  such  property  to 
the  rightful  owner.33  This  implication  is  based  on  the  theory 
that  "the  obligation  to  do  justice  rests  upon  all  persons,  natural 
and  artificial ;  and  if  the  county  obtains  the  money  or  property 
of  others  without  authority,  the  law,  independent  of  any  statute, 
will  compel  restitution  or  compensation."  In  one  of  the  leading 
cases34  Chief  Justice  Field  said:  "The  doctrine  of  implied 
municipal  obligation  applies  to  cases  where  money  or  other  prop- 
erty of  the  party  isi  received  under  such  circumstances  that  the 
general  law,  independent  of  express  contract,  imposes  the  obliga- 
tion upon  the  city  to  do  justice  with  respect  to  the  same.  If  the 
city  obtains  money  of  another  by  mistake  or  without  authority  of 
law  it  is  its  duty  to  refund  it,  not  from  any  contract  entered  into 
by  it  on  the  subject,  but  from  the  general  obligation  to  do  justice 
which  binds  all  persons,  natural  or  artificial.  If  the  city  obtains 
other  property  which  does  not  belong  to  her,  it  is  her  duty  to 
restore  it ;  or  if  used  by  her,  to  render  an  equivalent  to  the  true 
owner  from  the  like  general  obligation;  the  law,  which  always 
intends  justice,  implies  a  promise.  In  reference  to  money  or 
other  property  it  is  not  difficult  to  determine,  in  any  particular 
case,  whether  liability  in  respect  to  the  same  has  attached  to  the 
city.  The  money  must  have  gone  into  the  treasury  or  have  been 
appropriated  by  her ;  and  when  it  is  property  other  than  money, 
it  must  have  been  used  by  her  or  under  her  control.  But  with 
reference  to  services  rendered  the  case  is  different.  There,  ac- 
ceptance must  be  evidenced  by  ordinance  to  that  effect.  If  not 

82  Oregon  St.  Nav.  Co.  v.  Winsor,  (U.  S.)  376;  Louisiana  v.  Wood, 
20  Wall.  (U.  S.)  64;  Regan  v.  102  U.  S.  294;  Chapman  v.  Doug- 
Farmers'  Loan  &  Trust  Co.,  154  lass  Co.,  107  U.  S.  355;  Schipper 
U.  S.  362;  Western  Union  T.  Co.  v.  Aurora,  121  Ind.  154,  6  L.  R.  A. 
v.  Burlington,  etc.  R.  Co.,  11  Fed.  318;  Pittsburgh,  etc.  Ry.  Co.  v. 
1,  and  note;  Saginaw  G.  L.  Co.  v.  Keokuk,  etc.  Co.,  131  U.  S.  371. 
Saginaw,  28  Fed.  529.  '3*Argenti  v.  San  Francisco,  16 

sa  Marsh  v.  Fulton  Co.,  10  Wall.  Cal.  255. 


§  210]  CONTRACT  LIABILITIES  215 

originally  authorized,  no  liability  can  attach  upon  any  ground  of 
implied  contract.  The  acceptance  upon  which  alone  the  obliga- 
tion to  pay  could  arise  would  be  wanting. ' '  An  ultra  vires  con- 
tract does  not  become  lawful  by  being  executed;  but  while  the 
courts  will  not  disturb  such  a  contract  so  far  as  executed,  it  may 
be  disaffirmed  by  either  party  upon  making  restitution  so  far  as 
is  possible  of  what  has  been  received  under  it.  If  the  party  so 
disaffirming  fails  to  make  restitution,  the  other  party  may  re- 
cover the  property  or  its  value  in  an  action  upon  an  implied  con- 
tract.35 

§210.  Illustrations. — When  a  municipal  corporation  sells 
property  and  gives  a  deed  which  passes  no  title  and  receives  the 
person's  money  and  appropriates  it  to  its  own  use,  the  purchaser 
may  recover  back  the  purchase  money.36  "When  a  city  has 
authority  to  borrow  money  and  places  in  the  hands  of  a  broker 
bonds  apparently  valid,  but  which  are  in  fact  invalid,  and  the 
bonds  are  sold  and  proceeds  received  by  the  city,  the  transaction 
is  the  borrowing  of  money,  and  the  purchaser  of  the  bonds  may 
disregard  them  and  sue  the  city  for  money  had  and  received.37 
As  the  bonds  are  wholly  void  they  need  not  be  tendered  back.38 
So,  where  a  city  without  authority  exchanges  its  bonds  for  the 
bonds  of  a  railroad  company,  it  is  not  liable  on  the  bonds;  but 
if  value  has  been  received  by  the  city  it  can  be  recovered  in  an 
action  for  money  had  and  received.39  Where  a  county  was 
authorized  to  purchase  lands,  but  not  to  give  notes  secured  by 

ss  Marble    Co.    v.    Harvey,     92  20  Cal.  96 ;  Mayor  v.  Ray,  19  Wall. 

Tenn.  115;  Central  Trans.  Co.  v.  468;  see  contra,  Gause  v.  Clarks- 

Pullman  P.  C.  Co.,  139  U.   S.  60.  ville,  5  Dillon,  165. 

But  these  are  cases  of  private  cor-  36  Pimental  v.  San  Francisco,  21 

porations.    The  rule  of  liability  as  Cal.   352.     In   Massachusetts   one 

on  a  quantum  meruit  has  been  ap-  who  loans  money  to  a  town  on  a 

plied  more  strictly  in  cases  of  pub-  note  given  by  the  town  treasurer 

lie  corporations,   as  will   be  seen  without  authority,  cannot  recover 

in  the  cases  herein  cited.     As  a  it   from   the   town,   although    the 

general  rule  such  a  corporation  is  treasurer  used  the  money  to  pay 

never  liable  for  the  value  of  serv-  town  debts.     Agawam  Nat.  Bank, 

ices  or  property  which   has  been  v.  South  Hadley,  128  Mass.  503. 

devoted  to  an  unauthorized  under-  37  Louisiana  v.  Wood,  102  U.  S. 

taking;   and   is   not   always   held  294,  5  Dillon,  C.  C.  122. 

liable  where  the  consideration  has  ss  Paul  v.  Kenosha,  22  Wis.  266. 

been  devoted  to  an  authorized  pur-  39  Thomas   v.   Port   Hudson,   27 

pose.     Zottman  v.  San  Francisco,  Mich.  320. 


216  PUBLIC   CORPORATIONS.  [  §  211 

mortgage  for  the  purchase  price,  it  was  held  that  the  county  held 
the  title  to  the  land  as  trustee  for  the  vendor,  and  that  unless  the 
sum  due  was  paid  within  a  reasonable  time,  having  reference  to 
the  necessity  for  raising  the  money  by  taxation,  the  county  would 
be  compelled  to  reconvey  the  land.40  The  person  who  furnishes 
necessaries  to  a  pauper  whom  the  municipality  is  under  legal 
obligation  to  support  can  recover  for  the  same  from  the  munici- 
pality.41 So  a  city  is  liable  for  the  value  of  the  property  of  an 
individual  which  it  uses  in  the  care  of  the  indigent.42 

§211.  Right  to  recorer  back  illegal  taxes. — A  number  of 
states  have  statutes  which  authorize  the  recovery  of  money  paid 
for  illegal  taxes.43  In  the  absence  of  such  statutory  provisions, 
cities,  villages,  counties  and  towns  for  which  a  tax  has  been  col- 
lected may,  under  certain  circumstances,  be  liable  in  an  action  by 
the  party  from  whom  the  tax  has  been  collected.  Such  actions 
are  usually  brought  in  assumpsit  for  money  had  and  received.44 
In  the  absence  of  statutory  authority  such  an  action  can  only  be 
maintained  when  the  following  conditions  are  found  to  concur: 

1.  The  tax  must  have  been  illegal  and  void,  and  not  merely  ir- 
regular. 

2.  It  must  have  been  paid  under  compulsion  or  the  legal 
equivalent. 

3.  It  must  have  been  paid  over  by  the  collecting  officer  and 
have  been  received  to  the  use  of  the  municipality.45 

«  Chapman  v.  Douglass  Co.,  107  in  fact],  under  like  circumstances 

U.  S.  349.  as  an  individual;   but  where  the 

41  Seagraves  v.  Alton,  13  111.  366.  power  to  contract  is  coupled  with 

*2  Nashville    v.    Toney,    10    Lea  specific  direction  as  to  the  mode  of 

(Tenn.),  643.     In  Gas  Co.  v.  San  incurring  the  liability,   there  can 

Francisco,  9  Cal.  453,  the  city  was  be  no  implied  contract,  for  the  law 

held  liable  for  gas  furnished  with  in   such   case  only  authorizes  an 

the  knowledge  of  the  council,  al-  express     contract."       1     Andrews, 

though  no  ordinance  or  resolution  American  Law,  §  384.    Peterson  v. 

had  been  passed  authorizing  it  to  Mayor,  17  N.  Y.  449. 

be    furnished.      "Where   power    is  43  gee  Cooley,  Taxation,  804. 

given  a  public  officer  or  corpora-  4*  Grand  Rapids  v.   Blakely,  40 

tion  to  contract  with  reference  to  Mich.  367.    See  Yates  v.  Royal  Ins. 

a  particular  subject,  and  the  stat-  Co.,  200  111.  202 ;  Gannaway  v.  Bar- 

ute  is  silent  as  to  the  manner  in  ricklow,  203  111.  410. 

which  the  contract  shall  be  made,  «  First  Nat.  Bank  v.  Americus, 

the  public  may  be  held  liable  as  '68  Ga.  119. 
upon  an  implied  contract  [implied 


'§212]'  CONTRACT  LIABILITIES  217 

And  to  these,  says  Judge  Cooley,46  should  perhaps  be  added: 
4.     The  party  must  not  have  elected  to  proceed  in  any  remedy 
he  may  have  had  against  the  assessor  or  collector.47 

§  212.  Payment  must  be  compulsory. — The  assessment  must 
not  only  be  void,  and  the  corporation  actually  receive  the  money, 
but  the  payment  must  also  be  compulsory.  That  is,  it  must  be 
made  upon  direct  and  immediate  compulsion  and  under  such 
circumstances  that  the  party  can  save  himself  and  his  property 
only  by  paying  the  illegal  demand.48  As  stated  by  Judge  Dil- 
lon,49 the  coercion  must  consist  of  some  "actual  or  threatened 
exercise  of  power  possessed  or  believed  to  be  possessed  by  the 
party  exacting  or  receiving  the  payment  over  the  person  or  prop- 
erty of  another,  from  which  the  latter  has  no  other  means  or 
reasonable  means  of  immediate  relief  except  by  making  pay- 
ment. ' ' 

§213.  Voluntary  payment. — A  voluntary  payment  made 
with  a  full  knowledge  of  all  the  facts  and  circumstances  of  the 
case,  although  made  under  a  mistaken  view  of  the  law,  cannot  be 
recovered  back.  As  stated  by  the  supreme  court  of  the  United 
States:50  "Where  a  party  pays  an  illegal  demand  with  a  full 
knowledge  of  all  the  facts  which  render  such  demand  illegal  with- 
out an  immediate  and  urgent  necessity  therefor,  or  unless  to 
release  his  person  or  property  from  detention,  or  to  prevent  an 

4«  Cooley,  Taxation,  p.  805 ;  Dil-  galities  is  on  the  party  who  counts 

Ion,  Mun.  Corp.,  I,  §  940.    See  opin-  upon  them.   Douglasville  v.  Johns, 

ion  of  Chief  Justice  Shaw  in  Lin-  62  Ga.  423. 

coin  v.  Worcester,  8  Gush.  (Mass.)  4»  Union  Pac.  Ry.  Co.  v.  Dodge 

55.  Co.,  98  U.  S.  541;  Preston  v.  Bos- 

47  Ware  v.  Percival,  61  Me.  391.  ton,  12  Pick.   (Mass.)  7;  Briggs  v. 

A  demand  is  not  necessary  before  Lewiston,    29    Me.    472;    Grim    v. 

bringing   suit   to   recover   back   il-  School  District,  57  Pa.  St.  433. 

legal    taxes    unless    made    so    by  49  Dillon,  Mun.  Corp.,  II,   §  944. 

statute.     Look  v.  Industry,  51  Me.  BO  Union  Pac.  Ry.  Co.  v.  Dodge 

375.     Interest  is  recoverable  from  Co.,  98  U.  S.  541 ;  Lamborn  v.  Dick- 

the  date  of  demand,  but  not  before,  inson  Co.,  97  U.  S.  181 ;  Dunnell 

Boston,  etc.  Co.  v.  Boston,  4  Met.  Mfg.  Co.  v.  Newell,  15  R.  I.  233. 

(Mass.)    181.     If  only  a  part  of  There  is  a  strong  tendency  toward 

the  tax  was  illegal  the  recovery  giving  relief  against  a  mistake  of 

will  be  limited  to  that  part,  if  ca-  law.     See  Story,  Eq.  Jur.,  §  212a; 

pable  of  being  distinguished.    Tor-  Cooper  v.   Phipps,  L.   R.  2  H.  L. 

rey  v.  Millbury,  21  Pick.    (Mass.)  149;   Doniell  v.   Sinclair,   L.  R.  6 

64.     The   burden  of  showing  ille-  App.  Cas.  181,  190. 


218 


PUBLIC   CORPORATIONS. 


[§213 


immediate  seizure  of  his  person  or  property,  such  payment  must 
be  deemed  to  be  voluntary  and  cannot  be  recovered  back.  And 
the  fact  that  the  party  at  the  time  of  making  the  payment  filed 
a  written  protest  does  not  make  the  payment  involuntary."51 
A  payment  to  avoid  a  sale  under  an,  unconstitutional  statute  is 
voluntary.52  But  some  overt  act  is  necessary,  and  the  mere  is- 
suing of  tax  warrants  or  a  threats  to  collect  the  tax  is  not  com- 
pulsion.53 It  is  not  necessary,  however,  for  the  taxpayer  to  wait 
until  his  goods  are  sold  or  even  seized.54.  In  Iowa  money  paid 
under  protest  for  illegal  taxes  is  considered  as  paid  under  com- 
pulsion.55 So  it  has  been  held  that  taxes  paid  under  a  void  law 
to  a  person  who  appeared  authorized  to  collect  the  tax  can  be 
recovered  although  it  was  paid  without  protest.56  So  one  who 
by  force  of  a  statute  is  unable  to  place  a  deed  on  record  because 
of  the  existence  of  illegal  taxes  charged  against  it  may  pay  the 
taxes  in  order  to  secure  the  recording  of  the  deed  without  such 
payment  being  deemed  voluntary.57 


si  Sowles  v.  Soule,  59  Vt.  131 ; 
Shane  v.  St.  Paul,  26  Minn.  543; 
Powell  v.  St.  Croix  Co.,  46  Wis. 
210;  Babcock  v.  Fond  du  Lac,  58 
Wis.  231;  Goddard  v.  Seymour,  30 
Conn.  349.  Protest  alone  cannot 
change  a  voluntary  into  an  invol- 
untary payment.  Sonoma  Co.  Tax 
Case,  13  Fed.  789;  Merrill  v.  Aus- 
tin, 53  Cal.  379. 

52  Detroit    v.    Martin,    34    Mich. 
170 ;  Phelps  v.  Mayor  of  New  York, 
112  N.  Y.  216,  2  L.  R.  A.  625.   Such 
an  assessment  does  not  create  a 
cloud  upon  the  title.    Wells  v.  Buf- 
falo, 80  N.  Y.  253. 

53  Union  Pac.  Ry.  Co.  v.  Dodge 
Co.,  98  U.  S.  541 ;  Dunnell  Mfg.  Co. 
y.  Newell,  15  R.  I.  233.  ' 

54  Atwell  v.  Zeluff,  26  Mich.  118. 
5s  Thomas     v.     Burlington,     69 

Iowa,  140.  See  Robinson  v.  Rug- 
gles,  50  Iowa,  240. 

seTuttle  v.  Everett,  51  Miss.  27. 

57  State  v.  Nelson,  41  Minn.  25, 
4  L.  R.  A.  300,  annotated.  In  this 
case  the  court  said :  "It  has  always 


been  considered  that  the  payment 
under  protest  of  an  illegal  tax  or 
demand,  to  an  officer  armed  with 
a  warrant  authorizing  him  to  en- 
force the  payment  by  imprisonment 
or  by  seizure  and  sale  of  property, 
and  who  is  about  to  so  exercise 
his  authority,  is  not  voluntary  and 
may  be  recovered  back.  Dakota 
County  v.  Parker,  7  Minn.  207; 
Seeley  v.  Westport,  47  Conn.  294; 
Allen  v.  Burlington,  45  Vt.  202; 
Nickodemus  v.  East  Saginaw,  25 
Mich.  456;  Ruggles  v.  Fond  du 
Lac,  53  Wis.  436;  Smith  v.  Far- 
relly,  52  Cal.  77;  Guy  v.  Wash- 
burn,  23  Cal.  Ill;  Grim  v.  Weis- 
senberg  School  District,  57  Pa.  St. 
433.  Nor  is  this  proposition  ap- 
plicable merely  with  respect  to 
personal  property.  The  same  is 
true,  as  it  obviously  ought  to  be, 
when  real  property  is  involved. 
See  cases  above  cited,  particularly 
Seeley  v.  Westport,  Guy  v.  Wash- 
burn;  also  Stephan  v.  Daniels,  27 
Ohio  St.  527 ;  Valentine  v.  St.  Paul, 


§  213] 


CONTRACT  LIABILITIES. 


219 


84  Minn.  446.  Nor  is  it  necessary, 
in  order  to  constitute  compulsory 
as  distinguished  from  a  voluntary 
payment,  that  the  unlawful  de- 
mand be  made  by  an  officer  who 
is  prepared  to  enforce  it  by  proc- 
ess. There  may  be  that  kind  and 
degree  of  necessity  or  coercion 
which  justifies  and  virtually  re- 
quires payment  to  be  made  of  the 
illegal  demands  of  a  private  per- 
son who  has  it  in  his  power  to  se- 
riously prejudice  the  property 
rights  of  another,  and  to  impose 
upon  the  latter  the  risk  of  suffer- 
ing great  loss  if  the  demand  be  not 


complied  with.  This  is  illustrated 
in  the  case  of  Fargusson  v.  Wins- 
low,  34  Minn.  384,  and  cases  cited." 
The  payment  of  an  illegal  water 
charge  under  threat  that  the  water 
would  be  shut  off,  which  would  re- 
sult in  closing  the  plaintiff's  foun- 
dry, is  such  "moral  duress"  as  to 
make  the  payment  compulsory. 
Westlake  v.  St.  Louis,  77  Mo.  47. 
The  fact  that  an  ordinance  sub- 
jects a  person  to  a  flue  of  $25  a 
day  for  selling  liquor  without  a  li- 
cense made  the  payment  of  an 
illegal  license  compulsory.  Mar- 
shall v.  Snediker,  25  Tex.  460. 


CHAPTER  XVII. 


MUNICIPAL  SECURITIES. 


I.  WABBANTS  AND  OBDEBS. 
§214.  Power  to  issue. 

215.  Form. 

216.  Negotiability. 

217.  Effect  of  acceptance. 

218.  Presentment  and  demand. 

219.  Payable    out    of    particular 

fund. 

220.  Rights  of  indorsee. 

221.  Defenses. 

II.  MUNICIPAL  BONDS. 

222.  Power  of  public  (/Mast-corpo- 

rations. 

223.  Power  of  municipal  corpora- 

tions. 

224.  Ratification  of  illegal  bonds. 

225.  Liability  for  money  received. 

226.  Right  to  restrain  issue  of  il- 

legal bonds. 

a.  PUBPOSES  FOB  WHICH  BONDS  MAY 
BE  ISSUED. 

227.  Must  be  a  public  purpose. 

228.  What  are  public  purposes. 

229.  Railways. 

230.  Private  purposes. 

231.  How  determined. 


5.   CONDITIONS    PBECEDENT    TO    LEGAL 
ISSUE. 

§232.  In  general. 

233.  Consent  of  the  people. 

234.  Manner    of    obtaining    con- 

sent. 

235.  "Majority  of  voters." 

236.  Location  and  completion  of 

roads. 

C.   ESTOPPEL. 

237.  When  estoppel  arises. 

238.  Authority  of  officers. 

239.  Estoppel   by  conduct;  illus- 

trations. 

240.  By  judgment. 

d.  BIGHTS    OF    BONA    FIDE    HOLDEBS. 

241.  Who  are  such. 

242.  Defenses   available   against 

a  bona  fide  holder. 

243.  Recitals  in  bonds. 

244.  Effect     of     recitals — contin- 

ued. 

245.  Authority     of     officials     to 

make  recitals. 

246.  Recital  that  bonds  have  been 

issued   "in   conformity  to 
law." 

247.  Excessive  issues. 


I.    WARRANTS  AND  ORDERS. 

§  214.  Power  to  issue. — Counties,  towns  and  municipal  cor- 
porations have  implied  authority  to  issue  instruments  in  the  form 
of  vouchers  for  money  due,  certificates  of  indebtedness  for  ser- 
vices rendered  or  property  furnished,  or  orders  by  one  officer 
of  the  municipality  upon  another.  Such  instruments  are  nec- 
essary and  proper  in  carrying  on  the  administration  and  antici- 


220 


§  215]  MUNICIPAL  SECURITIES.  221 

pating  the  payment  of  taxes.1  But  in  order  to  be  valid  such 
warrants  must  be  issued  for  a  legal  purpose  and  for  the  amount 
actually  due.  They  cannot  be  discounted.2 

§  215.  Form.—  Warrants  are  commonly  in  the  form  of  an 
order  drawn  by  one  officer  upon  another,  by  which  the  drawer 
authorizes  the  payment  of  a  certain  sum  of  money  to  the  payee. 
Statutes  prescribing  the  form  are  commonly  held  to  be  direct- 
ory.3 

§  216.  Negotiability. — In  a  few  cases  it  has  been  held  that 
warrants,  when  negotiable  in  form,  have  all  the  attributes  of 
negotiable  paper,4  but  the  overwhelming  weight  of  authority 
is  to  the  effect  that  such  instruments  are  not  commercial  paper 
within  the  purview  of  the  law  merchant,  and  that  the  purchaser 
takes  subject  to  any  defenses  which  were  available  between  the 
original  parties.5  "Although  negotiable  instruments,"  says  Mr. 
Justice  Gray,6  "they  belong  to  a  peculiar  class  of  such  instru- 
ments, being  made  by  a  municipal  corporation,  and  having  no 
validity  unless  issued  for  a  purpose  authorized  by  law.  *  *  * 
To  invest  such  documents  with  the  character  and  incidents  of 
commercial  paper,  so  as  to  render  them  in  the  hands  of  bona  fide 

i  Mayor  v.  Ray,  19  Wall.  468,  at  s  Bardsley      v.      Sternberg,      17 

477;  Shawnee  Co.  Com'rs  v.  Car-  Wash.    243,    49    Pac.    499;    Police 

ter,    2    Kan.   115;    Slingerland   v.  Jury  v.  Britton,  15  Wall.   (U.  S.) 

Newark,  54  N.  J.  L.  62,  23  Atl.  566;  Mayor  of  Nashville  v.  Ray, 

129;  Aull  Sav.  Bank  v.  Lexington,  19  Wall.  (U.  S.)  468,  22  L.  ed.  164; 

74  Mo.  104.  Claiborne  Co.  v.  Brooks,  111  U.  S. 

zErskine  v.  Steele  Co.,  4  N.  D.  400;  Emery  v.  Maria ville,  56  Me. 

339,  28  L.  R.   A.  645 ;   Foster  v.  315 ;  Sturtevant  v.  Liberty,  46  Me. 

Coleman,   10   Cal.   278;    Bauer   v.  457;  Shirk  v.  Pulaski  Co.,  4  Dill. 

Franklin  Co.,  51  Mo.  205;  Arnott  (U.  S.)  209;  Clark  v.  Des  Moines, 

v.  Spokane,  6  Wash.  442,  33  Pac.  19  Iowa,   199,  87  Am.   Dec.   423; 

1063 ;  Pugh  v.  Little  Rock,  35  Ark.  People  v.  Johnson,  100  111.  537,  39 

75 ;  Million  v.  Soule,  15  Wash.  261,  Am.  Rep.  63 ;  Goodnow  v.  Ramsey 

46  Pac.  234.  Co.,  11  Minn.  31  (Gil.  12)  ;  School 

sBurrton    City    v.    Harvey   Co.  District   v.    Stough,   4   Neb.   357; 

Bank,  28  Kan.  390.  State  v.  Cook,  43  Neb.  318,  61  N. 

<Kelley   v.   Mayor,   4   Hill    (N.  W.   693;   Hubbard  v.   Lyndon,  28 

Y.),  263;  Crawford  Co.  v.  Wilson,  Wis.  674;  Eaton  v.  Berlin,  49  N. 

7  Ark.  214 ;  Hancock  v.  Chicot  Co.,  H.  219 ;  Hyde  v.  Franklin  Co.,  27 

32  Ark.  575.    See  Fairchild  v.  Og-  Vt  185;  Erskine  v.  Steele  Co.,  4 

densburgh,  etc.  Ry.  Co.,  15  N.  Y.  N.  D.  339,  28  L.  R.  A.  645. 

337 ;    Garvin    v.   Wiswell,    83   111.  «  District  of  Columbia  v.  Cornell, 

215.  130  U.  S.  655. 


222  PUBLIC   CORPORATIONS.  [§217 

holders  absolute  obligations  to  pay,  is  an  abuse  of  their  true 
character  and  purpose."  With  reference  to  the  power  to  issue 
such  obligations  Mr.  Justice  Miller  says:7  "It  seems  to  us  to  be 
a  question  quite  distinct  from  that  of  incurring  indebtedness  for 
improvements  actually  authorized  and  undertaken,  the  justice 
and  validity  of  which  may  always  be  inquired  into.  It  is  a  power 
which  ought  not  to  be  implied  from  the  mere  authority  to  make 
such  improvements.  It  is  one  thing  for  county  or  parish  trustees 
to  have  the  power  to  incur  obligations  for  work  actually  done  in 
behalf  of  the  county  or  parish  and  to  give  proper  vouchers  there- 
for, and  a  totally  different  thing  to  have  the  power  of  issuing 
unimpeachable  paper  obligations  which  may  be  multiplied  to  an 
indefinite  extent.  It  would  be  an  anomaly  justly  to  be  depre- 
cated for  our  limited  territorial  boards,  charged  with  certain 
objects  of  local  administration,  to  become  the  fountains  of  com- 
mercial issue  capable  of  floating  about  in  the  commercial  whirl- 
pool of  our  great  cities." 

§217.  Effect  of  acceptance. — A  creditor  is  not  obliged  to 
accept  a  warrant  in  payment  of  his  claim  against  a  corporation, 
but  if  he  does  accept  it  and  parts  with  it  he  loses  his  right  of 
action  on  the  original  debt.8  But  the  original  holder  of  an  un- 
paid or  dishonored  warrant  may  abandon  it  and  sue  on  the  origi- 
nal claim.9 

§  218.  Presentment  and  demand. — In  the  absence  of  any 
provision  to  the  contrary,  municipal  obligations  are  payable  at 
the  municipal  treasury.10  Until  demand  there  is  no  default.11 
It  is  hence  the  duty  of  the  holder  of  such  instruments  to  pre- 
sent them  to  the  proper  officer  for  payment  before  bringing 
suit;12  and  the  fact  of  presentment,  demand  and  non-payment, 

t  Police  Jury  v.  Britton,  15  Wall.  10  Friend  v.  Pittsburgh,  131  Pa. 

(U.  S.)  566.  St.  305,  6  L.  R.  A.  636. 

s  Dalrymple  v.  Whitingham,  26  "  Pekin  City  v.  Reynolds,  31  111. 

Vt.  345;   Contra,  Lyell  v.  Lapeer  529,  28  Am.  Dec.  244;  Dalrymple 

Co.,  6  McLean  (C.  C.),  446.  v.  Whitingham,  26  Vt.  345;  Cen- 

»  Paddock  v.  Symonds,  11  Barb,  tral  City  v.  Wilcoxen,  3  Colo.  566 ; 

(N.  Y.)    117;   Dyer  v.   Covington  East  Union  Tp.  v.  Ryan,  86  Pa.  St. 

Tp.,    19    Pa.    St.   200;    Varner   v.  459. 

Nobleborough,  2  Me.  121,  11  Am.  12  Varner  v.  Nobleborough,  2  Me. 

Dec.  48.    In  Allison  v.  Juniata  Co.,  126,  11  Am.  Dec.  48. 
50  Pa.  St.  351,  it  was  held  that  the 
action  must  be  upon  the  original 
claim. 


§  219]  MUNICIPAL   SECURITIES.  223 

or  facts  which  will  excuse  the  same,  must  be  alleged  and  proven. 
A  warrant  is  due  immediately  upon  presentation  and  demand 
although  there  is  no  money  in  the  treasury  with  which  to  pay 
it.13  In  a  leading  case  it  was  said:  "There  is  nothing  in  the 
charter  which  favors  the  notion  that  the  liability  of  the  city 
for  road  debts  is  conditioned  upon  the  existence  of  road  funds  in 
the  treasury.  For  road  debts  the  city  is  absolutely  and  uncon- 
ditionally liable  as  for  other  debts.  This  liability  cannot  be  con- 
trolled or  varied  by  the  form  in  which  the  warrant  may  be  drawn 
or  worded  by  the  municipal  officers."  14 

§219.  Payable  out  of  a  particular  fund. — "When  the  law 
requires  that  a  warrant  shall  be  drawn  on  a  specified  fund  it 
cannot  be  made  a  general  charge  upon  the  treasury.  The  holder 
of  such  a  warrant  must  look  to  the  particular  fund  for  pay- 
ment.15 A  warrant  containing  the  words  "Charge  the  same  to 
the  account  of  Union  Avenue"  is  payable  out  of  a  particular 
fund.16  A  warrant  containing  a  clause,  "payable  out  of  any 
money  not  otherwise  appropriated,"  17  or  "it  being  for  the  pro- 
portional part  of  the  surplus  revenue, "  18  is  payable  uncondition- 
ally. So  a  warrant  payable  "for  jail  purposes. "  19  A  distinction 
must  be  observed  between  orders  drawn  payable  out  of  a  particu- 
lar fund  and  those  which  are  simply  chargeable  to  a  particular 
account.20 

§  220.  Rights  of  indorsee. — The  title  to  a  warrant  passes  by 
indorsement,  and  the  assignee  may  sue  in  his  own  name,21,  al- 
though he  stands  in  no  better  position  than  did  the  original 


is  International  Bank  v.  Frank-  Co.  v.  Aberdeen,  22  Wash.  404,  60 

lin  Co.,  65  Mo.  105,  27  Am.  Rep.  Pac.  1115. 

241;  Terry  v.  Milwaukee,  15  Wis.  is  Lake  v.  Williamsburgh,  4  De- 

490;  Mills  Co.  Nat.  Bank  v.  Mills  nio    (N.   Y.)    520. 

Co.,  67  Iowa,  697 ;  Aull  Sav.  Bank  IT  Campbell  v.  Polk  Co.,  3  Iowa, 

v.  Lexington,  74  Mo.  104.  467. 

14  Clark  v.  Des  Moines,  19  Iowa,  is  Pease  v.  Cornish,  19  Me.  191. 

199,  87  Am.  Dec.  423.  is  Montague  v.  Horton,  12  Wis. 

is  Campbell  v.  Polk  Co.,  76  Mo.  599. 

57 ;   Boro   v.   Phillips   Co.,   4  Dill.  20  Clark  v.  Des  Moines,  19  Iowa, 

(U.  S.  C.  C.)   216;  M'Cullough  v.  199;  Pease  v.  Cornish,  19  Me.  191. 

Mayor,    23    Wend.     (N.    Y.)    458;  21  Kelley  v.   Mayor,   4   Hill    (N. 

People  v.  Wood,  71  N.  Y.  371;  Af-  Y.),  263;  Great  Falls  Bank  v.  Far- 

feld  v.  Detroit,  112  Mich.  560,  71  mington,   41   N.    H.   32;    Clark   v. 

N.  W.  151;  Northwestern  Lumber  Des  Moines,  19  Iowa,  199. 


224  PUBLIC   CORPORATIONS.  [§  221 

holder.22  He  must,  however,  show  that  the  original  consideration 
for  the  warrant  was  such  an  obligation  as  the  corporation  had 
authority  to  incur.23  Where  warrants  were  issued  ultra  vires, 
and  the  jurisdiction  was  one  in  which  the  court  took  the  view  that 
an  action  will  lie  in  such  cases  upon  the  original  consideration  as 
on  a  quantum  meruit,  it  was  held  that  the  indorsement  would  be 
treated  as  an  assignment  of  the  right  to  sue  for  such  considera- 
tion.24 

§221.  Defenses. — When  payment  of  a  warrant  is  made  in 
good  faith  the  corporation  is  released  from  further  liability.25  If 
re-issued  after  being  paid  it  is  void  in  the  hands  of  an  innocent 
purchaser.26  But  there  must  be  some  act  evidencing  an  intent 
to  cancel  the  warrant.  Thus,  the  mere  receiving  of  a  warrant 
in  payment  of  taxes  is  not  of  itself  payment.27 

Want  of  authority  is  always  a  defense  to  an  action  on  a  war- 
rant.28 Although  ' '  a  warrant  signed  by  the  proper  officer  prima 
facie  imports  validity  and  a  subsisting  cause  of  action,  it  is  al- 
ways competent  for  a  municipal  corporation,  even  after  the  is- 
suance of  a  warrant  on  the  treasury,  to  set  up  the  defense  of 
ultra  vires."  29  So  the  authority  of  the  officer  issuing  the  war- 
rant is  always  open  to  inquiry.30  The  statute  of  limitations  runs 
from  the  time  of  demand  and  refusal.31  Where  there  is  want 
of  power  to  borrow  money  there  can  be  no  recovery  on  warrants 
issued  therefor,  although  the  money  received  was  used  for  a  pur- 
pose for  which  the  corporation  had  power  to  contract  a  debt.32 

22  Matthis  v.  Town  of  Cameron,  sen,  40  Mich.  429 ;  Jefferson  Co.  v. 

62  Mo.  504.  Arrighi,  54  Miss.  668;  Nash  v.  St 

as  School   District  v.   Thompson,  Paul,  11  Minn.  174  (Gil.  110). 
5  Minn.  280 ;  Goodnow  v.  Ramsey  29  Cheeney   v.   Town    of    Brook- 
Co.,  11  Minn.  31    (Gil.  12).     See  field,  60  Mo.  53;  Thomas  v.  Rich- 
Polk  v.  Tunica,  52  Miss.  422.  mond,  12  Wall.  (U.  S.)  349;  Sala- 

2*Gause  v.  Clarkesville,  5  Dil-  manca  Tp.  v.  Jasper  Co.  Bank,  22 

Ion,  165.  Kan.  696. 

25  Sweet  v.  Carver  Co.,  16  Minn.  so  Taf t  v.  Pittsford,  28  Vt.  286 ; 
106.  First  Nat.  Bank  v.  Saratoga  Co., 

26  Lake  County  v.   Standley,  24  106  N.  Y.  488. 

Colo.    1,    49    Pac.    23;    Chemung  si  Clark  v.  Iowa  City,  20  Wall. 

Bank  v.  Chemung  Co.,  5  Denio  (N.  (U.  S.)  583;  Brewer  v.  Otoe  Co., 

Y.)  517.  1  Neb.  373;  Leach  v.  Wilson  Co., 

27  Willey  v.   Greenfield,   30  Me.  68  Tex.  353. 

452.  82  Allen  v.  Intendant  of  La  Fay- 

as  Sault  Ste.  Marie  v.  Van  Du-    ette,  89  Ala.  641,  9  L.  R.  A.  497. 


§  222]  MUNICIPAL   SECURITIES.  225 

II.  MUNICIPAL  BONDS. 

§  222.  Power  of  public  quasi-corporations. — Legislative  au- 
thority is  necessary  to  authorize  counties,  townships  and  school 
districts  to  borrow  money  and  issue  negotiable  bonds,  or  to 
issue  negotiable  bonds  in  aid  of  any  public  enterprise.  It  must 
be  clearly  conferred  but  may  be  implied.  Thus,  a  county  may 
issue  bonds  under  express  power  to  make  a  donation  of  "money 
or  other  securities"  for  the  benefit  of  a  state  insane  asylum.33 
Such  bodies  exist  for  purposes  of  local  and  police  regulation,  and 
having  the  power  to  levy  taxes  to  defray  all  public  charges 
created,  they  have  no  implied  power  to  make  commercial  paper 
of  any  kind  unless  it  is  clearly  implied  from  some  express  power 
which  cannot  be  fairly  exercised  without  it.34  It  is  a  power 
distinct  from  that  of  incurring  indebtedness  for  improvements 
actually  authorized ;  as  it  is  one  thing  to  have  the  power  to  incur 
a  debt  and  to  give  proper  vouchers  therefor,  and  a  totally  dif- 
ferent thing  to  have  the  power  of  issuing  obligations  unimpeach- 
able in  the  hands  of  third  persons.35  Thus,  the  power  to  sub- 
scribe for  stock  in  a  railway  corporation  does  not  include  the 
power  to  issue  municipal  bonds  in  payment  therefor.36  But  upon 
this  last  proposition  the  cases  are  not  uniform,  as  it  has  been  held 
that  the  power  to  contract  debts  carries  with  it  the  power  to  agree 


33  Lund  v.  Chippewa  Co.,  93  Wis.  ss  Claiborne  Co.  v.  Brooks,  111 

640,   67   N.   W.   927,   34   L.   R.   A.  U.  S.  400. 

131.     See,  also,  as  to  implied  pow-  se  Hill  v.  Memphis,  134  U.  S.  198, 

er,  Carter  Co.  v.  Sinton,  120  U.  S.  33  L.  ed.  887 ;  Young  v.  Clarendon 

517,  30  L.  ed.  701.    Power  to  issue  Tp.,  132  U.  S.  340 ;  Kelley  v.  Town 

bonds  payable  in  gold  coin  is  not  of  Milan,  127  U.  S.  139,  32  L.  ed. 

conferred  on  a  county  by  a  statute  77;    Dent   v.    Cook,   45    Ga.   323; 

not  prescribing  the  kind  of  money  Knapp    v.    Hoboken,   39   N.    J.   L. 

in  which  the  bonds  shall  be  paid.  394 ;  Hamlin  v.  Meadville,  6  Neb. 

Burnett  v.  Maloney,  97  Tenn.  697,  227;   Goodnow  v.  Ramsey  Co.,  11 

34  L.  R.  A.  541.  Minn.  31    (Gil.  12).     In  Rushville 

s*  Goodnow    v.    Ramsey   Co.,    11  Gas  L.  Co.  v.  City  of  Rushville,  121 

Minn.  31 ;  Board  of  Education  v.  Ind.  206,  6  L.  R.  A.  315,  the  court 

Blodgett,  155  111.  441,  31  L.  R.  A.  said  with  reference  to  public  cor- 

70 ;  Police  Jury  v.  Britton,  15  Wall,  porations    other    than    school    dis- 

(U.  S.)   566.     The  mere  failure  to  tricts,   "issuing   bonds   to  pay  for 

provide  means  for  paying  the  bonds  property  purchased  is  a  very  dif- 

does  not  render  the  enabling  stat-  ferent  thing  from  issuing  bonds  to 

ute  invalid.     Stockton  v.   Powell,  obtain  money." 
29  Fla.  1,  15  L.  R.  A.  42. 

15 


226 


PUBLIC   CORPORATIONS. 


[§223 


with  creditors  as  to  the  time  and  manner  of  payment  and  the 
issue  of  negotiable  bonds.37 

§223.  Power  of  municipal  corporations.— The  powers  of 
cities  and  incorporated  towns  are  somewhat  more  liberally  con- 
strued, but  notwithstanding  this  fact  the  rule  is  that  the  power 
to  borrow  money  and  to  issue  negotiable  paper  does  not  belong  to 
such  a  corporation  as  an  incident  of  its  creation.38  It  is  held, 
however,  that  express  power  to  borrow  money  carries  with  it  im- 
plied power  to  issue  negotiable  bonds.39.  Power  to  issue  bonds 
will  authorize  their  issue  in  the  usual  form  of  negotiable  bonds 
payable  to  bearer.40  Such  power  is  not,  however,  implied  from 
express  authority  to  subscribe  for  stock  in  a  railway  corpora- 
tion,41 or  from  a  grant  of  power  to  appropriate  money  to  aid  in 
the  construction  of  a  railroad,  with  authority  to  levy  a  tax  to  pro- 
vide the  money  to  meet  the  appropriation.42  It  is  well  settled  that 


37  Williamsport  v.  Common- 
wealth, 84  Pa.  St.  487,  24  Am. 
Rep.  208;  First  Municipality  v. 
McDonough,  2  Rob.  (La.)  244; 
Bank  of  Chillicothe  v.  Chillicothe, 
7  Ohio  (pt.  2),  31;  Douglass  v. 
Virginia  City,  5  Nev.  147;  Rich- 
mond v.  McGirr,  78  Ind.  192; 
Holmes  v.  Shreveport,  31  Fed.  113. 

ss  Mayor  v.  Ray,  19  Wall.  (U. 
S.)  468;  Merrill  v.  Monticello,  138 
U.  S.  673,  34  L.  ed.  1069;  Hill  v. 
Memphis,  134  U.  S.  198,  33  L.  ed. 
887;  Hewitt  v.  School  District,  94 
111.  528. 

39  Comanche  Co.  v.  Lewis,  133 
U.  S.  198 ;  Seybert  v.  Pittsburgh,  1 
Wall.  (U.  S.)  272,  17  L.  ed.  553; 
Commonwealth  v.  Pittsburgh,  34 
Pa.  St.  496,  followed  in  Comm.  v. 
Pittsburgh,  88  Pa.  St.  66;  Evans- 
ville  v.  Evansville,  etc.  Ry.  Co.,  15 
Ind.  395,  followed  in  Evansville  v. 
Woodbury,  60  Fed.  718;  Galena  v. 
Corwith,  48  111.  423,  95  Am.  Dec. 
557;  DeVoss  v.  Richmond,  18 


Gratt.  338,  98  Am.  Dec.  646.  See 
Merrill  v.  Monticello,  138  U.  S. 
673;  see  comments  on  this  case  in 
5  Harvard  Law  Review,  157 ;  Bren- 
ham  v.  German-American  Bank, 
144  U.  S.  191,  36  L.  ed.  390,  and 
cases  cited ;  Farr  v.  City  of  Grand 
Rapids,  112  Mich  99,  70  N.  W.  411. 
Power  to  issue  bonds  to  take  up 
floating  indebtedness,  see  Morris  v. 
Taylor,  31  Oreg.  62,  49  Pac. 
660. 

40  West  Plains  Tp.  v.  Sage,  32  U. 
S.  App.  725,  69  Fed.  943 ;  Austin  v. 
Nalle,  85  Tex.  520. 

41  Hill    v.    Memphis,    134    U.    S. 
198,  33  L.  ed.  887 ;  Kelly  v.  Milan, 
127  U.  S.  139,  32  L.  ed.  77;  Nor- 
ton v.  Dyersburg,  127  U.   S.  160; 
Claiborne  Co.  v.  Brooks,  111  U.  S. 
400;  Milan  v.  Tennessee  Cent.  Ry. 
Co.,  11  Lea  (Tenn.),  330. 

42  Concord  v.   Robinson,   121   U. 
S.  165,  30  L.   ed.  885,  and  cases 
cited  in  preceding  note. 


§  224]  MUNICIPAL   SECURITIES.  227 

a  public  corporation  cannot,  without  express  authority,  issue  its 
negotiable  bonds  in  aid  of  a  railway  corporation.43 

§  224.  Ratification  of  illegal  bonds. — An  ultra  vires  act  can- 
not be  ratified  by  any  act  of  the  corporation.44  Thus,  where  a 
corporation,  in  pursuance  of  a  compromise  agreement,  consented 
to  the  entry  of  a  decree  in  favor  of  the  validity  of  certain  bonds, 
the  court  said:  "The  act  of  the  mayor  in  signing  that  agree- 
ment could  give  no  validity  to  the  bonds  if  they  had  none  at  the 
time  the  agreement  was  made.  The  want  of  authority  to  issue 
them  extended  to  a  want  of  authority  to  declare  valid.  The 
mayor  had  no  such  authority.  The  decree  of  the  court  was  based 
solely  on  the  declaration  of  the  mayor,  in  the  agreement,  that 
the  bonds  were  valid ;  and  that  declaration  was  of  no  more  effect 
than  the  declaration  of  the  mayor  in  the  bill  in  chancery  that  the 
bonds  were  invalid.  The  adjudication  in  the  decree  cannot, 
under  the  circumstances,  be  set  up  as  a  judicial  determination 
of  the  validity  of  the  bonds.45  This  was  not  the  case  of  the 
submission  to  a  court  of  a  question  for  its  decision  on  the  merits ; 
but  it  was  a  consent  in  advance  to  a  particular  decision  by  a 
person  who  had  no  right  to  bind  the  town  by  such  a  consent, 
because  it  gave  life  to  invalid  bonds;  and  the  authorities  of  the 
town  had  no  more  power  to  do  so  than  they  had  to  issue  the 
bonds  originally."46 

But  when  power  to  issue  exists,  and  the  bonds  are  rendered 
invalid  by  reason  of  some  irregularity,  they  may  be  ratified  by 
the  act  of  the  corporation.47  The  legislature  may  validate  an 

43  Young  v.  Clarendon  Tp.,  132  Orleans,  etc.  Ry.  Co.  v.  Dunn,  51 

U.   S.   340;   Brenham  v.   German-  Ala.  128. 

American  Bank,  144  U.  S.  173,  36  44  Ottawa   v.   Carey,   108   U.    S. 

L.  ed.  390 ;  Claiborne  Co.  v.  Brooks,  110,  27  L.  ed.  669 ;  Lewis  v.  Shreve- 

111  U.  S.  400;  Town  of  Coloma  v.  port,  108  U.  S.  282,  27  L.  ed.  728; 

Eaves,  92  U.  S.  484;  Pitzman  v.  Daviess  Co.  v.  Dickinson,  117  U. 

Freeburg,    92   111.   Ill;    Delaware  S.  657;  Mills  v.  Gleason,  11  Wis. 

Co.    v.    McClintock,    51    Ind.    325 ;  470,  78  Am.  Dec.  721 ;  Blen  v.  Bear 

Mississippi,  etc.  R.  R.  Co.  v.  Cam-  River,  etc.  Co.,  20  Cal.  602,  81  Am. 

den,  23  Ark.  300 ;  Clay  v.  Nicholas  Dec.  132. 

Co.,  4  Bush    (Ky.),  154;  William-  *s  Russell  v.  Place,  94  U.  S.  606. 

son  v.  Keokuk,  44  Iowa,  88 ;  Haw-  46  Kelley  v.  Town  of  Milan,  127 

kins  v.  Carroll  Co.,  50  Miss.  735;  U.  S.  139,  per  Blatchford,  J. 

Reineman   v.    Covington,    etc.    Ry.  «  Bolles  v.  Brimfleld,  120  U.  S. 

Co.,  7  Neb.  310;  Pennsylvania  Ry.  759,   30   L.   ed.   786;    Anderson  v. 

Co.  v.  Philadelphia,  47  Pa.  St.  189 ;  Santa   Anna   Tp.,   116  U.   S.  356 ; 

Fisk  v.  Kenosha,  26  Wis.  23 ;  New  Otoe  Co.  v.  Baldwin,  111  U.  S.  1, 


228  PUBLIC   CORPORATIONS.  [§225 

illegal  issue  of  bonds  if  at  the  time  of  the  passage  of  the  curative 
act  its  has  constitutional  authority  to  authorize  an  original  issue 
of  such  bonds.48 

§225.  Liability  for  money  received.— Although  the  cases 
are  not  uniform,  the  rule  may  be  considered  as  established  that 
when  a  corporation  has  issued  illegal  bonds,  and  received  and 
applied  the  proceeds  thereof  to  an  authorized  purpose,  an  action 
will  lie  against  the  corporation  for  money  had  and  received,  al- 
though there  can  be  no  recovery  upon  the  bond.49  As  stated  in 
a  recent  case,50  municipal  corporations  are  liable  to  actions  of 
implied  assumpit  with  respect  to  money  or  property  received 
by  them  and  applied  beneficially  to  their  authorized  objects, 
through  contracts  which  are  simply  unauthorized  as  distinguished 
from  contracts  which  are  prohibited  by  their  charters  or  some 
other  law  bearing  upon  them,  or  are  malum  in  se,  or  violative  of 
public  policy. 

§  226.  Right  to  restrain  issue  of  illegal  bonds. — Where  no 
adequate  remedy  at  law  exists,  a  taxpayer  may  restrain  the  il- 
legal isr.ue  of  bonds  which  would  be  valid  in  the  hands  of  an  in- 
nocent holder  for  value.51  But  if  they  are  of  such  a  character 


28  L.  ed.  331;  Black  v.  Cohen,  52  when   that  which   is   done   would 

Ga.  621 ;  Bridgeport  v.  Housatonic  have  been  legal  had  it  been  done 

Ry.   Co.,    15   Conn.   475 ;    Mills   v.  under  legislative  sanction  previous- 

Gleason,   11   Wis.  470,  at  493,  78  ly  given."   Grenada  Co.  v.  Brogden, 

Am.   Dec.  721 ;   Comer  v.   Folsom,  112  U.  S.  261,  7  Am.  &  Eng.  Corp. 

13  Minn.  219    (Gil.  205)  ;   Kunkle  Cas.  329. 

v.  Town  of  Franklin,  13  Minn.  127  *»  Bangor    Sav.    Bank    v.    Still- 

(Gil.  119),  97  Am.  Dec.  226.     By  water,  49  Fed.  721;  Argenti  v.  San 

payment    of    interest.      Brown    v.  Francisco,  16  Cal.  255;  Morton  v. 

Bon  Homme  Co.,  1  S.  D.  216,  46  Nevada,  41  Fed.  582;  Chapman  v. 

N.  W.  173.  Douglas  Co.,  107  U.   S.  348 ;   Salt 

48  Sykes   v.   Columbus,   55   Miss.  Lake  City  v.  Hollister,  118  U.  S. 

115;     Katzenberger    v.    Aberdeen,  256. 

121  U.  S.  172.     "A  municipal  sub-  so  Allen  v.  The  Intendant  of  La 

scription  to  the  stock  of  a  railway  Fayette,  89  Ala.  641,  9  L.  R.  A.  497. 

company  or  in  aid  of  the  construe-  si  Harrington  v.  Town  of  Plain- 

tion  of  a  railroad,  made  without  view,     27    Minn.    224;     Flack    v. 

authority      previously      conferred,  Hughes,  67  111.  384;   Hodgman  v. 

may  be  confirmed  and  legalized  by  Chicago,  etc.  Ry.  Co.,  20  Minn.  48 ; 

subsequent  enactment,  when  legis-  English  v.   Smock,  34  Ind.  115,  7 

lation  of  that  character  is  not  pro-  Am.  Rep.  215. 
hibited   by    the   constitution,   and 


§  227]  MUNICIPAL   SECURITIES.  229 

as  to  be  void  even  in  the  hands  of  an  innocent  holder,  the  tax- 
payer cannot  suffer  any  loss  by  reason  of  their  issue,  and  hence 
cannot  maintain  an  action  for  injunction.52 

«.      PURPOSES  FOR  WHICH  BONDS  MAY  BE  ISSUED. 

§227.  Must  be  a  public  purpose. — The  money  with  which 
to  pay  maturing  bonds  must  be  raised  by  taxation;  and  it  fol- 
lows from  the  general  rule  governing  taxation  that  negotiable 
bonds  can  be  issued  for  public  purposes  only.53  "The  legisla- 
ture," said  Chief  Justice  Black,54  "has  no  constitutional  right 
to  create  a  public  debt,  or  to  lay  a  tax,  or  to  authorize  any  muni- 
cipal corporation  to  do  it,  in  order  to  raise  money  for  a  mere 
private  purpose.  No  such  authority  passed  to  the  Assembly  by 
the  general  grant  of  legislative  power.  This  would  not  be  legis- 
lation. Taxation  is  a  mode  of  raising  revenue  for  public  pur- 
poses. When  it  is  prostituted  to  objects  in  no  way  connected 
with  the  public  interests  or  welfare,  it  ceases  to  be  taxation,  and 
becomes  plunder." 

§228.  What  are  public  purposes. — A  public  corporation 
may  properly  incur  a  debt  and  issue  bonds  for  the  purpose  of 
paving  streets,55  constructing  water- works,56  supporting  public 
schools,57  constructing  public  buildings,58  acquiring  electric  light 

52  McCoy  v.  Briant,  53  Cal.  247 ;  w  Land,  L.  &  L.  Co.  v.  Brown, 

East  Oakland  Tp.   v.   Skinner,  94  73  Wis.  294,  3  L.  R.  A.  473;  Kear- 

U.  S.  255.  ney  v.  Woodruff,  115  Fed.  90 ;  Cul- 

os  Parkersburg  v.  Brown,  106  U.  bertson  v.  City  of  Fulton,  127  111. 

S.    487,  27  L.  ed.  238;  Loan  Ass'n  30.     As   to   irrigation   bonds,   see 

v.  Topeka,  20  Wall.  655,  22  L.  ed.  §  112 ;  Hughson  v.  Crane,  115  Cal. 

455 ;  City  of  Eufaula  v.  McNab,  67  404 ;  Fallbrook  Irrigation  District 

Ala.  588,  42  Am.  Rep.  118;  Balti-  v.  Bradley,  164  U.  S.  112. 

more,  etc.  Ry.  Co.  v.  Spring,  80  Md.  57  Read  v.  Plattsmouth,  107  U.  S. 

510,  27  L.  R.  A.  72.  568,  27  L.  ed.  414 ;  Hensley  Tp.  v. 

54  Sharpless  v.  Mayor  of  Phila-  People,   84   111.   544 ;    Richards   v. 
delphia,  21  Pa.  St.  147,  59  Am.  Dec.  Raymond,  92  111.  612,  34  Am.  Rep. 
759.  151;  Board  of  Education  v.  State, 

55  Gladstone  v.  Throop,  71  Fed.  26  Kan.  44. 

Rep.  341,  37  U.  S.  App.  481 ;  Rog-  ss  Leavenworth  Co.  v.  Miller,  7 

ers  v.  Burlington,  3  Wall.  654,  18  Kan.  479.    (Public  park),  People  v. 

L.  ed.  79;  In  re  Washington  Ave.,  Detroit,  28  Mich.  228,  15  Am.  Rep. 

69  Pa.   St.  352;   People  v.  Flagg,  202;  People  v.  Chicago,  51  111.  17, 

46  N.  Y.  401 ;  Seattle  v.  Yesler,  1  2  Am.  Rep.  278. 
Wash.  571. 


230 


PUBLIC   CORPORATIONS. 


[§229 


plant,59  and,  under  express  legislative  authority,  to  aid  in  cele- 
brating some  great  national  event,  such  as  the  Columbian  Ex- 
position,60 or  the  anniversary  of  its  incorporation,61  or  for  the 
entertainment  of  distinguished  visitors  upon  such  occasions.62 
But  no  implied  authority  exists  to  appropriate  money  for  such 
purposes.63  The  treatment  of  habitual  drunkards  in  a  private 
institution,  which  is  subject  to  visitation  and  inspection,  is  not  a 
public  purpose  for  which  a  county  can  be  required  to  pay.64 

§  229.  Railways. — Railways  are  of  such  a  public  character 
that  a  public  corporation  may  be  authorized  to  aid  in  their  con- 
struction, either  by  subscription  to  their  capital  stock  or  by  do- 
nation, and  the  issue  of  negotiable  bonds  in  payment  of  such  sub- 
scription or  donation.65  Railways  are  public  highways.  The 
public  has  an  interest  in  them  when  they  belong  to  a  corporation 
as  clearly  as  it  would  if  they  were  free  or  if  tolls  were  payable 


59  Electric  Light  Co.  v.  Jackson- 
ville, 36  Fla.  229,  30  L.  R.  A.  540 ; 
Heilbron  v.  City  of  Cuthbert,  96 
Ga.  312,  23  S.  E.  206 ;  City  of  New- 
port v.  Newport  Light  Co.,  84  Ky. 
167. 

eoDaggett  v.  Colgan,  92  Cal.  53, 
14  L.  R.  A.  474,  and  note. 

ei  Hill  v.  Easthampton,  140 
Mass.  381. 

62Tatham  v.  Philadelphia,  11 
Phil.  276. 

63  Hodges  v.  Buffalo,  2  Denio  (N. 
5".),  110;   Hood  v.  Lynn,  1  Allen 
(Mass.),  103;  The  Liberty  Bell,  23 
Fed.    843.      See    Hayes    v.    Doug- 
las County,  92  Wis.  429,  31  L.  R.  A. 
213. 

64  Wisconsin  Keeley  Institute  Co. 
V.  Milwaukee  Co.,  95  Wis.  153,  70 
N.  W.  68,  36  L.  R.  A.  54. 

65  Leavenworth  Co.  v.  Miller,  7 
Kan.   479,   containing   full    discus- 
sion ;    see    dissenting    opinion    of 
Valentine,    J. ;    Olcott   v.    Supervi- 
sors, 16  Wall.  678;  Norton  v.  Dy- 
ersburg,   127   TJ.    S.   160;   Concord 
v.  Robinson,  121  U.  S.  165,  30  L.  ed. 
885;  Gelpcke  v.  Dubuque,  1  Wall. 


(U.  S.)  175,  17  L.  ed.  520;  Quincy, 
etc.  Ry.  Co.  v.  Morris,  84  111.  410; 
Pine  Grove  Tp.  v.  Talcott,  19  Wall. 
(U.  S.)  666,  disapproving  People 
v.  Salem,  20  Mich.  452,  4  Am.  Rep. 
400;  Thompson  v.  Lee  County,  3 
Wall.  (U.  S.)  327;  Dickinson  v. 
Neely,  30  S.  C.  587,  3  L.  R.  A. 
672 ;  Davidson  v.  Ramsey  County, 
18  Minn.  482 ;  Ex  parte  Selma,  etc. 
Ry.  Co.,  45  Ala.  696,  6  Am.  Rep. 
722;  Society  of  Savings  v.  New 
London,  29  Conn.  174 ;  Renwick  v. 
Davenport,  47  Iowa,  511 ;  Hallen- 
beck  v.  Hahn,  2  Neb.  377 ;  Wullen- 
waber  v.  Dunigan,  30  Neb.  877,  13 
L.  R.  A.  811;  Nelson  v.  Haywood 
Co.,  87  Tenn.  781,  4  L.  R.  A.  648. 
Contra,  People  v.  Salem,  20  Mich. 
452,  4  Am.  Rep.  400;  Whiting  v. 
Sheboygan,  etc.  Ry.  Co.,  25  Wis. 
167,  3  Am.  Rep.  30.  The  Michi- 
gan court  adheres  to  the  decision 
in  People  v.  Salem,  supra.  People 
v.  State  Treasurer,  23  Mich.  499; 
Thomas  v.  Port  Hudson,  27  Mich. 
320;  Atty-General  v.  Detroit  Com- 
mon Council,  148  Mich.  71,  at  98, 
and  cases  cited. 


§  230]  MUNICIPAL   SECURITIES.  231 

to  the  state.  Travel  and  transportation  are  cheapened  by  them  to 
a  degree  far  exceeding  all  the  charges.  This  advantage  the  pub- 
lic has  in  addition  to  those  of  rapidity,  comfort  and  increase  of 
trade.66 

But  bonds  issued  by  a  county  for  the  benefit  of  an  insolvent 
railroad  company,  with  a  provision  that  legal  claims  against  the 
company  held  by  residents  of  the  county  shall  first  be  paid  out 
of  the  proceeds,  are  void.67  "The  effect  and  scope  of  the  act 
is  simply  to  levy  a  tax  upon  the  property  of  the  citizens  of  the 
county  to  pay  to  certain  residents  of  the  county  the  claims  due  to 
them  by  an  insolvent  railway  company.  This  is  a  private  pur- 
pose and  not  one  of  the  objects  of  taxation." 

In  most  of  the  cases  no  distinction  is  made  between  a  subscrip- 
tion to  the  stock  of  and  a  donation  to  the  railway  company ; 68 
but  it  has  been  held  that  while  a  subscription  to  stock  is  valid,  a 
gift  for  the  same  purpose  is  invalid.69  The  road  to  be  aided 
need  not  be  in  the  municipality  and  may  be  in  another  state.70 

§230.  Private  purposes. — The  public  has  no  such  interest 
in  manufacturing  and  mining  enterprises  as  will  justify  the  ex- 
ercise of  the  power  of  taxation  in  their  aid.  And  it  follows 
that  bonds  issued  for  such  purposes  even  under  statutory  au- 


««  Sharpless  v.  Mayor  of  Phila-  pose  of  constructing  a  railroad  is 

delphia,  21  Pa.  St.  147,  59  Am.  Dec.  a    public    purpose ;    *    *    *    and 

759.  if  it  is  thought  to  be  better  that 

67  Baltimore,    etc.    Ry.    Co.    v.  an  outright  gift  of  money  should  be 

Spring,  80  Md.  510,  27  L.  R.  A.  72.  made  than  that  the  city  should  be- 

fls  in   Davidson   v.   Ramsey   Co.,  come   a    stockholder   in   the   road, 

18  Minn.  482  (Gil.  432),  the  court  there  is  nothing  to  prevent  the  for- 

said:  "So  far  as  the  question  of  mer  course  from  being  adopted." 
power   is   concerned,    we   think   it        «» Whiting  v.  Sheboygan,  etc.  Ry. 

quite     unimportant     whether     the  Co.,  25  Wis.  167,  3  Am.  Rep.  30; 

money  to  be  raised  is  to  be  given  Sweet  v.  Hulbert,  51  Barb.  (N.  Y.) 

to  the  company,  or  loaned  to  it,  or  312. 

applied  to  pay  for  subscriptions  to        ™  Bell  v.  Mobile,  etc.  Ry.  Co.,  4 

stock.      Stewart   v.    Polk    Co.,   30  Wall.    (U.   S.)    598;   Chicago,  etc. 

Iowa,   9.     As   remarked  by  Chief  Ry.  Co.  v.  Otoe  Co.,  16  Wall.   (TJ. 

Justice     Black     in     Sharpless     v.  S.)   667;  Walker  v.  Cincinnati,  21 

Mayor  of  Philadelphia,  21  Pa.  St.  Ohio   St.   14,   8  Am.   Rep.  24;   St. 

147  and  169,  the  right  to  tax  de-  Jo.,  etc.  Ry.  Co.  v.  Buchanan  Co., 

pends  upon  the  ultimate  use,  pur-  39  Mo.  485.     See  State  v.  Dallas 

pose    and    object    for    which    the  Co.,  72  Mo.  329. 
fund  is  raised.     *     *    *    The  pur- 


232 


PUBLIC   CORPORATIONS. 


[§231 


thority  are  invalid.71  Thus,  it  is  a  violation  of  constitutional 
principles  limiting  the  general  power  of  taxation  for  a  city  to 
incur  a  debt  and  issue  bonds  for  the  purpose  of  aiding  in  the  con- 
struction of  a  dam  over  a  river  within  the  limits  of  the  munici- 
pality for  improving  the  water-power  in  order  to  develop  the 
manufacturing  interests  of  the  inhabitants.72 

§231.  How  determined. — It  is  well  settled  that  the  courts 
must  determine  whether  the  particular  purpose  under  considera- 
tion is  public  or  private,73  and  in  so  doing  they  must  be  guided 
largely  by  considerations  of  public  policy.74 

&.      CONDITIONS  PRECEDENT  TO  LEGAL  ISSUE. 

§232.  In  general. — The  issue  of  bonds  by  public  corpora- 
tions is  ordinarily  authorized  upon  certain  specified  conditions. 
Such  conditions  may  be  imposed  by  the  constitution,  an  act  of  the 
legislature,  or  by  the  corporate  authorities.  Those  imposed  by 


71  See  supra,  §  33.  Loan  Ass'n 
v.  Topeka,  3  Dill.  376,  20  Wall.  (U. 
S.)  655,  22  L.  ed.  455;  Osborne  v. 
Adams  Co.,  106  U.  S.  181,  109  U. 
S.  1,  27  L.  ed.  835;  Parkersburg  v. 
Brown,  106  U.  S.  487,  27  L.  ed.  238, 
2  Am.  &  Eng.  Corp.  Cas.  263 ;  Blair 
v.  Cuming  Co.,  Ill  U.  S.  363 ;  Brod- 
head  v.  Milwaukee,  19  Wis.  624, 
88  Am.  Dec.  711 ;  Weismer  v.  Doug- 
las, 64  N.  Y.  91,  21  Am.  Rep.  586; 
Bissell  v.  Kankakee,  64  111.  249,  21 
Am.  Rep.  554 ;  Tyler  v.  Beacher, 
44  Vt.  648,  8  Am.  Rep.  398;  Allen 
v.  Jay,  60  Me.  124,  11  Am.  Rep.  185. 
In  State  v.  Osawkee  Tp.,  14  Kan. 
418,  19  Am.  Rep.  99,  it  was  held 
that  money  could  not  lawfully  be 
appropriated  to  provide  destitute 
farmers  with  seed  grain ;  but  the 
contrary  was  held  in  State  v.  Nel- 
son Co.  (N.  Dak.),  45  N.  W. 
33,  8  L.  R.  A.  283,  and  In  re  House 
Roll  No.  284,  31  Neb.  505.  In  Low- 
ell v.  Boston,  111  Mass.  454,  15 
Am.  Rep.  39,  it  was  held  that  a 
city  had  no  power  to  issue  bonds 


in  aid  of  persons  suffering  from  a 
flood  or  fire,  and  that  a  statute 
authorizing  the  issue  for  such  a 
purpose  was  unconstitutional. 
Feldman  v.  Charleston,  23  S.  C. 
57,  55  Am.  Rep.  6. 

72  Mather  v.  Ottawa,  114  111. 
659,  3  N.  E.  216,  11  Am.  &  Eng. 
Corp.  Cas.  248;  Ottawa  v.  Carey, 
108  U.  S.  110,  27  L.  ed.  669. 

TS  in  re  Townsend,  39  N.  Y.  171. 

74  Perry  v.  Keene,  56  N.  H.  514. 
In  Weismer  v.  Douglas  Co.,  64  N. 
Y.  91,  21  Am.  Rep.  586,  Mr.  Justice 
Folger  said:  "When  we  come  to 
ask,  in  any  case,  what  is  a  public 
purpose,  the  answer  is  not  always 
ready  nor  easy  to  be  found.  It  is 
to  be  conceded  that  no  pinched  or 
meager  sense  may  be  put  on  the 
words,  and  that  if  the  purpose  des- 
ignated by  the  legislature  lie  so 
near  the  border  line  as  that  it 
may  be  doubtful  on  which  side  it 
may  be  domiciled,  the  court  may 
not  set  their  judgment  against  that 
of  the  law-makers." 


$  233]  MUNICIPAL  SECURITIES.  233 

the  constitution  or  act  of  the  legislature  must  be  strictly  com- 
plied with  or  the  bonds  will  be  invalid.75  But  where  the  law  pro- 
vided that  bonds  should  not  "be  valid  and  binding  until  such 
conditions  precedent  had  been  complied  with,"  it  was  held  that 
they  might  be  complied  with  after  the  bonds  were  issued.76  After 
there  has  been  substantial  performance  of  the  conditions,  the 
validity  of  the  bonds  is  not  affected  by  subsequent  acts.77  Such 
conditions  may  be  imposed  by  the  corporation  although  not  re- 
quired to  do  so  by  the  law.78  But  an  innocent  purchaser  of 
bonds  issued  under  such  conditions  is  not  required  to  see  that 
they  have  been  complied  with.79  When  conditions  have  been 
submitted  to  and  approved  by  the  voters  of  a  municipality  they 
cannot  be  waived  by  the  municipal  officials,80  but  must  be  re- 
submitted  to  the  people.81  But  it  seems  that  if  it  is  generally 
known  that  the  conditions  have  not  been  complied  with,  and 
the  bonds  are  allowed  to  issue  without  objection,  it  will  be  held 
to  amount  to  a  waiver.82  The  power  to  determine  when  condi- 
tions have  been  performed  is  an  official  trust  which  cannot  be 
delegated  by  the  corporate  authorities.83 

§  233.  Consent  of  the  people. — A  common  condition  prece- 
dent to  the  issue  of  bonds  is  that  the  consent  of  a  certain  pro- 
portion of  the  voters  or  taxpayers  shall  first  be  obtained  at  a 
general  or  special  election.  This  is  now  required  in  most  of 
the  states.  But  a  popular  vote  does  not  confer  power  to  issue  aid 
bonds  in  the  absence  of  a  valid  enabling  act.84  This  condition 

75  Leavenworth,  etc.  Ry.  Co.  v.  79  Nelson    v.    Haywood    Co.,    87 

Platte  Co.,  42  Mo.  171 ;  Essex  Co.  Term.  781,  4  L.  R.  A.  648,  659. 

Ry.  Co.  v.  Lunenburg,  49  Vt.  143 ;  so  Hodgman  v.  Chicago,  etc.  Ry. 

Town   of   Eagle   v.   Kohn,   84   111.  Co.,  20  Minn.  48,  23  Minn.  153. 

292 ;  Belo  v.  Forsytbe  Co.,  76  N.  C.  si  Town  of  Plattville  v.  Galena, 

489 ;  State  v.  Moore,  45  Neb.  12,  etc.  Ry.  Co.,  43  Wis.  493 ;  State  v. 

63  N.  W.  130.  Montgomery,  74  Ala.  226;  Douglas 

TO  Town  of  Eagle  v.  Kohn,  84  111.  Co.    v.    Walbridge,    38    Wis.    179; 

292.  State  v.  Daviess  Co.,  64  Mo.  30. 

77  Hodgman  v.  Chicago,  etc.  Ry.  82  Leavenworth,  etc.   Ry.  Co.  v. 
Co.,  23  Minn.  153.  Douglas  Co.,  18  Kan.  169. 

78  Mason  v.  Shawneetown,  77  111.  S3  Jackson  Co.  v.  Brush,  77  111. 
533;    California,    etc.    Ry.    Co.    v.  59;  Knox  Co.  v.  Nichols,  14  Ohio 
Butte  Co.,  18  Cal.  671;  Hodgman  St.  260. 

v.  Chicago,  etc.  Ry.  Co.,  20  Minn.  84  Allen  v.  Louisiana,  103  U.  S. 
48,  23  Minn.  153 ;  Coe  v.  Railway  80 ;  Hayes  v.  Holly  Springs,  114  U. 
Co.,  27  Minn.  197.  S.  120. 


234  PUBLIC  CORPORATIONS.  [  §  234 

must  be  strictly  complied  with  ;85  but  irregularities  which  do  not 
affect  the  result  of  the  election  will  not  invalidate  the  bonds  in 
the  hands  of  an  innocent  purchaser  for  value.86  Reasonable  cer- 
tainty only  in  the  manner  of  voting  is  necessary.87 

§  234.  Manner  of  obtaining  consent. — When,  a  majority  of 
the  voters  of  a  municipality  are  authorized  by  law  to  incumber 
the  property  of  all  in  aid  of  some  public  purpose,  the  record  of 
the  proceedings  must  affirmatively  show  that  the  statutory  au- 
thority has  been  followed  according  to  its  terms.88  Thus,  where 
the  proceeding  is  by  petition,  the  petition  required  by  the  law 
must  be  absolute,89  must  contain  all  the  facts  required  by  the 
law90  and  be  signed  by  the  requisite  number91  of  duly  qualified 
citizens.92  A  petition  showing  the  consent  of  a  "majority  of  tax- 
payers" is  not  sufficient  when  the  law  requires  the  consent  of  a 
majority  of  taxpayers  exclusive  of  those  taxed  for  dogs  and 
highway  purposes  only.93  A  required  election  must  be  called  by 
the  persons  designated  in  the  law94  and  notice  must  be  given  in 
the  manner  directed.95  When  the  notice  is  required  to  be  given 
by  the  supervisors,  it  may  be  by  order  of  the  board  signed  by  the 
clerk.96  The  notice  must  state  the  subject-matter  to  be  voted  on 
with  reasonable  certainty.  Thus,  an  article  in  a  warrant  for  a 
town  meeting  "to  see  if  the  town  will  loan  its  credit  to  aid  in  the 
construction"  of  a  railroad  is  sufficient.97  But  a  notice  which 
does  not  state  the  amount  of  bonds  proposed  to  be  issued,  the 

ss  Lewis     v.     Bourbon     Co.,  12  »<>  People  v.  Spencer,  55  N.  Y.  1 ; 

Kan.  186.    See  State  v.  Saline  Co.,  Wellsboro  v.  New  York,  etc.   Ry. 

48  Mo.  390,  8  Am.  Rep.  108.  Co.,  76  N.  Y.  182. 

se  Johnson  Co.  v.  Thayer,  94  U.  »i  People  v.  Oldtown,  88  111.  202. 

S.  631 ;  Commissioners  v.  Shorter,  92  People  v.  Cline,  63  111.  394. 

50  Ga.  489;   State  v.  Hordey,   39  »s  Rich  v.  Mentz  Tp.,  134  U.  S. 

Kan.     657,     18    Pac.    942.      Mere  632. 

informality  in  conducting  the  elec-  a*  Jacksonville  R.  R.  Co.  v.  Vir- 

tion    will    not    overcome   the   pre-  den,  104  111.  339. 

sumption  that  the  holder  is  a  6ono  95  George  v.  Oxford  Tp.,  16  Kan. 

flde  holder.     Pana  v.  Bowler,  107  72. 

U.  S.  529.  »6  Lawson  v.  Milwaukee,  etc.  Ry. 

ST  Ranney  v.  Baeder,  50  Mo.  600.  Co.,  30  Wis.  597. 

ss  Rich  v.  Mentz  Tp.,  134  U.  S.  97  Belfast,  etc.  Ry.  Co.  v.  Brooks, 

632 ;  Cowdrey  v.  Caneadea,  16  Fed.  60  Me.  569 ;  Bowen  v.  Mayor  of 

532.  Greensboro,  79  Ga.  709. 

ss  Craig  v.  Town  of  Andes,  93 
N.  Y.  405.  Contra,  Bittinger  v. 
Bell,  65  Ind.  445. 


§  235]  MUNICIPAL  SECURITIES.  235 

interest  or  the  time  or  place  of  payment  thereof,  but  merely  the 
time  of  election  and  the  object  of  the  bonds,  is  insufficient.98  A 
general  notice  of  election  need  not  state  the  places  at  which  the 
election  will  be  held  when  the  general  election  law  requires  that 
notices  to  be  posted  in  each  precinct  shall  contain  such  state- 
ment." The  conditions  in  the  bonds  must  follow  this  notice.1 

§235.  "Majority  of  voters." — A  majority  of  the  legal  vot- 
ers satisfies  a  statute  which  requires  a  majority  of  the  taxpayers.2 
The  consent  of  the  "inhabitants"  means  the  consent  of  the  legal 
voters.3  A  majority  of  the  legal  voters  means  a  majority  of  those 
voting  at  an  election  duly  called  and  held.4  A  majority  of  the 
qualified  electors  means  a  majority  of  the  registered  voters.5 
Two-thirds  of  the  qualified  voters  means  two-thirds  of  those  who 
vote.6  A  purchaser  of  county  bonds  need  look  no  further  than 
the  record  made  by  the  county  board  of  their  determination  that 
the  requisite  number  of  votes  has  been  cast.7 

§236.  Location  and  completion  of  roads. — Where  bonds 
are  to  be  used  to  aid  in  the  construction  of  a  railroad  it  is  com- 
monly made  a  condition  precedent  to  their  lawful  issue  and  de- 
livery that  the  road  to  be  aided  shall  be  located  on  a  certain  line 
or  completed  to  a  designated  point.  Such  conditions  must  be 

ospackwood  v.  Kittitas  Co.,  15  Harris,  96  Mo.  29,  22  Am.  &  Eng. 

Wash.  88,  33  L.  R.  A.  673,  45  Pac.  Corp.  Cas.  43 ;  Carroll  Co.  v.  Smith, 

640.  Ill  U.  S.  556;  People  v.  Warfield, 

9»Packwood  v.  Kittitas  Co.,  20  111.  160;  People  v.  Wiant,  48 

supra.  111.  263;  Griffin  v.  Inman,  etc.  Co., 

1  Skinner  v.  Santa  Rosa,  107  Cal.  57    Ga.    370.      "The    majority    of 
464,  40  Pac.  742,  29  L.  R.  A.  512.  such  electors,"  as  used  in  section  1, 

2  Hannibal  v.  Fauntleroy,  105  U.  article   2,    constitution    of    Minne- 
S.  408.  sota,   means   the   majority  of   the 

a  Walnut  Tp.  v.  Wade,  103  U.  S.  electors    voting    at    the    election. 

683.  Taylor    v.    Taylor,    10    Minn.    107 

*  St.   Joseph    Tp.   v.   Rogers,   16  (Gil.    81)  ;    Everett   v.    Smith,   22 

Wall.  644 ;   Cass  Co.  v.  Johnston,  Minn.   53 ;    Belknap   v.    Louisville, 

95  U.  S.  360,  overruling  Harshman  99  Ky.  474,  20  S.  W.  309,  34  L.  R. 

v.  Bates,  92  U.   S.  569.     The  su-  A.  256. 

preme    court    of    Missouri    subse-  » Southerland  v.   City  of  Golds- 

quently   construed   the   same  Mis-  boro,   96   N.   C.   49;    McDowell   v. 

souri    statute    involved    in    these  Mass.,  etc.  Co.,  96  N.  C.  514. 

cases  in  the  U.  S.  Supreme  Court,  «  State  v.  St.  Joseph,  37  Mo.  270. 

and  reached  a  decision  contrary  to  i  Valley  Co.  v.  McLean,  49  U.  S. 

that  of  the  latter  court.     State  v.  App.  131,  79  Fed.  728. 


236  PUBLIC   CORPORATIONS.  [§236 

complied  with  before  the  bonds  are  earned.8  A  condition  that 
the  company  shall,  before  a  certain  date,  "have  completed,  ironed 
and  equipped  its  road  from  said  village  of  W.  to  the  city  of  M., 
and  have  the  same  in  operation  for  the  transportation  of  pas- 
sengers and  freight,"  is  substantially  complied  with  by  so  con- 
structing the  road  to  within  a  quarter  of  a  mile  of  the  village  of 
W.  and  from  that  point  entering  the  town  over  the  line  of  an- 
other company  and  using  its  depot.9  The  completion  of  a  road 
to  within  three-quarters  of  a  mile  of  the  opposite  bank  of  the 
Mississipi  river  is  not  performance  of  a  condition  requiring1  the 
completion  of  the  road  to  a  town  on  the  opposite  side  of  the  river, 
but  the  railway  company  cannot  in  such  case  be  required  to  con- 
struct a  bridge  across  the  river.  It  is  sufficient  if  it  provides  such 
facilities  for  crossing  as  at  the  time  of  the  contract  were  usual 
and  customary  under  the  cimcumstances  in  railroad  transporta- 
tion and  as  were  reasonably  adequate  and  convenient.10  Whether 
the  time  of  completion  is  material  will  depend  upon  the  language 
of  the  statute.  When  not  made  of  the  essence  of  the  contract  the 
municipality  will  be  liable  on  the  bonds  if  it  actually  receives  the 
benefits  sought  by  the  contract.11  Thus,  a  railway  company  does 
not  forfeit  its  right  to  a  donation  by  its  failure  to  complete  its 
road  within  the  designated  time  when  the  prescribed  expenditure 
has  been  made  within  the  township  limit.12  The  actual  location 
of  the  road  may  be  made  a  condition  precedent  to  the  submission 
of  the  question  of  aid  to  the  voters.13  In  such  a  case,  if  the  condi- 


s Portland,  etc.  Ry.  Co.  v.  Hart-  "Nevada  Bank  v.  Steinmitz,  64 

ford,  58  Me.  23;  Woonsocket,  etc.  Cal.  301;  Kansas  City  Ry.  Co.  v. 

Ry.  Co.  v.  Sherman,  8  R.  I.  564 ;  Alderman,  47  Mo.  349 ;  Portage  Co. 

Stockton,  etc.  Ry.  Co.  v.  Stockton,  v.  Wis,,  etc.  Ry.  Co.,  121  Mass.  460 ; 

51  Cal.  328;  Virginia,  etc.  Ry.  Co.  People  v.  Holden,  82  111.  93;  Mc- 

v.  Lyon  Co.,  6  Nev.  68;   State  v.  Manus  v.  Duluth,  C.  &  W.  R.  Co., 

Neely,  30  S.  C.  587,  9  S.  E.  664,  3  51    Minn.     30;     German     Savings 

L.  R.  A.  672.  Bank  v.  Franklin  Co.,  128  U.   S. 

9  State  v.   Clark,  23  Minn.  422.  526. 

And  see  Mo.  Pac.  Ry.  Co.  v.  Ty-  12  Nixon   v.   Campbell,   106  Ind. 

gard,  84  Mo.  263,  54  Am.  Rep.  97.  47. 

ioHodgman  v.  Chicago,  etc.  Ry  is  Cass  v.  Jordan,  95  II.  S.  373; 

Co.,  20  Minn.  48.     See  Winona  v.  Treadwell  v.  Hancock  Co.,  11  Ohio 

Thompson,  24  Minn.  199,  and  Win-  St.  183. 
ona  v.  Cowdry,  93  U.  S.  612. 


§237] 


MUNICIPAL  SECURITIES. 


237 


tions  are  not  complied  with  and  the  bonds  are  nevertheless  issued 
they  are  invalid  unless  held  by  ~bona  fide  purchasers  without 
notice.14 

c.    ESTOPPEL. 

§  237.  When  estoppel  arises. — It  has  been  stated  that  want 
of  power  is  always  a  defense  to  an  action  on  municipal  securi- 
ties, even  as  against  a  bona  fide  holder.  The  validity  of  such  in- 
struments is  ordinarily  attacked  on  the  grounds :  First,  because 
issued  or  used  for  other  than  public  purposes;  second,  because 
the  enabling  statute  is  unconstitutional ;  or  third,  because  of  non- 
compliance  with  conditions  imposed  by  the  enabling  act  or  the 
issuing  corporation.  But  the  corporation  may  by  its  acts 
place  itself  in  a  position  where  it  cannot  avail  itself  of  what 
would  but  for  the  doctrine  of  estoppel  be  a  good  defense.  Na 
estoppel  can  arise,  however,  against  the  defense  of  want  of 
power.15  Even  a  bona  fide  holder  for  value  is  bound  to  take  no- 
tice of  the  law  under  which  the  bonds  are  issued.16 


"Purdy  v.  Lansing,  128  U.  S. 
557;  Mellen  v.  Lansing,  11  Fed. 
Rep.  829.  In  Wilson  Co.  v.  First 
Nat.  Bank,  103  U.  S.  770,  it  was 
held  that  it  was  not  necessary  that 
there  should  have  been  a  definite 
and  final  -survey  and  location  of 
the  entire  line  of  road  before  the 
election.  All  that  was  necessary 
was  a  substantial  location  desig- 
nating the  termini  and  general  di- 
rection of  the  road  and  an  esti- 
mate of  the  cost  of  construction. 
In  some  of  the  state  courts,  how- 
ever, a  much  stricter  rule  is  ap- 
plied. Thus,  where  a  condition  re- 
quired the  construction  of  a  road 
within  twelve  hundred  feet  of  a 
mill,  it  was  held  that  its  construc- 
tion within  two  thousand  feet  was 
not  a  compliance  with  the  condi- 
tions. Virginia,  etc.  R.  R.  Co.  v. 
Lyon  Co.,  6  Nev.  68.  Federal 
courts  disregard  fractions  of  miles 
in  such  cases.  Johnson  Co.  v. 
Thayer,  94  U.  S.  631. 


isAspinwall  v.  Daviess  Co.,  22 
How.  (U.  S.)  364;  Marsh  v.  Ful- 
ton Co.,  10  Wall.  (U.  S.)  676,  19 
L.  ed.  1040;  Loan  Ass'n  v.  Topeka, 
20'  Wall.  (U.  S.)  655;  Force  v. 
Town  of  Batavia,  61  111.  100;  Bis- 
sell  v.  Kankakee,  64  111.  249,  21 
Am.  Rep.  554;  Town  of  Douglass 
v.  Niantic  Sav.  Bank,  97  111.  228; 
Williamson  v.  Keokuk,  44  Iowa, 
88;  Lamoille,  etc.  Ry.  Co.  v.  Fair- 
field,  51  Vt.  257;  Graves  v.  Saline 
County,  161  U.  S.  359,  40  L.  ed. 
732.  Mr.  Simonton  (Mun.  Bonds, 
§  192)  says :  "The  true  meaning  of 
the  term  'want  of  power'  is  the 
total  lack  of  authority  in  the  cor- 
poration to  act,  and  every  act  done 
by  the  municipal  corporation  with- 
out power  is  void  and  cannot  be 
made  valid  by  any  act  of  the  cor- 
poration or  its  officers." 

leBarnett  v.  Denison,  145  U.  S. 
136;  Ottawa  v.  Carey,  108  U.  S. 
110 ;  Force  v.  Town  of  Batavia,  61 
111.  100. 


238  MUNICIPAL  SECURITIES.  [  §  238 

§238.  Authority  of  officers. — A  public  corporation  is  not 
estopped  to  deny  the  authority  of  persons  who  assume  to  act 
for  it;  and  it  follows  that  purchasers  of  bonds  must  assume  the 
risk  of  the  genuineness  of  signatures  and  official  character.17 
Mr.  Justice  Bradley  said:18  "The  plea  that  the  city  is  estopped 
by  the  acts  of  its  officers,  by  the  resolutions  of  the  city  council,  or 
by  the  negotiable  form  or  other  matter  in  the  bonds  themselves, 
from  denying  the  authority  of  such  officers  to  pledge  the  faith 
of  the  city  in  aid  of  said  plank-roads,  and  to  issue  the  bonds  in 
question,  cannot  be  maintained.  Public  officers  cannot  acquire 
authority  by  declaring  that  they  have  it.  They  cannot  thus  shut 
the  mouths  of  the  public  whom  they  represent.  The  officers  and 
agents  of  private  corporations  intrusted  by  them  with  the  man- 
agement of  their  own  business  and  property,  may  estop  their 
principals  and  subject  them  to  the  consequences  of  their  un- 
authorized acts.  But  the  body  politic  cannot  be  thus  silenced 
by  the  acts  or  declarations  of  its  agents  *  *  *  I  hold  it 
to  be  a  sound  proposition,  that  no  municipal  or  political  body 
can  be  estopped  by  the  acts  or  declaration  of  its  officers  from 
denying  their  authority  to  bind  it. ' ' 

§  239.  Estoppel  by  conduct — Illustrations. — A  municipality 
may  by  its  course  of  dealing  be  estopped  to  interpose  a  defense 
growing  out  of  an  irregular  exercise  of  power.  Under  such  cir- 
cumstances the  holder  of  the  bonds  is  entitled  to  the  same  pro- 
tection as  a  bona  fide  holder.19  Thus,  an  estoppel  may  arise  by 
the  corporation  retaining  the  consideration,  such  as  stock,  re- 
ceived for  the  bonds,  and  paying  interest  on  the  bonds.20  But 


17  Merchants'    Bank    v.    Bergen  465 ;    Steines  v.   Franklin  Co.,  48 

Co.,  115  U.  S.  384;  Brown  v.  Bon  Mo.  167,  8  Am.  Rep.  87. 

Homme  Co.,  1  S.  Dak.  216,  46  N.  20  Alvord    v.    Syracuse    Savings 

W.  173;  Coler  v.  Cleburne,  131  U.  Bank,  98  N.  Y.  599,  8  Am.  &  Eng. 

S.  162 ;  Flagg  v.  School  District,  4  Corp.  Cas.  598 ;  People  v.  Cline,  63 

N.  Dak.  30,  25  L.  R.  A.  363,  58  N.  111.  394 ;  Ray  Co.  v.  Vansycle,  96 

W.  499.  U.  S.  675 ;  State  v.  Clinton  Co.,  6 

isChisholm     v.     Montgomery,    2  Ohio  St.  280.     In  Pendleton  Co.  v. 

Wood  (C.  C.),  584.  Amy,  13  Wall.   (U.  S.)  297,  it  ap- 

i»  Rogers  v.  Burlington,  3  Wall,  peared    that     the    county    issued 

(U.  S.)    654;  Bissell  v.  Jefferson-  bonds  without  a  popular  vote  as 

ville,  24  How.    (U.  S.)   287;  Ben-  required  by  law.    After  holding  the 

nington  v.  Park,  50  Vt.  178 ;  N.  H.,  stock    which    it    received    for    the 

etc.  Ry.  Co.  v.  Chatham,  42  Conn,  bonds    for    seventeen    years    the 


§  240]  MUNICIPAL  SECURITIES.  239 

it  must  be  remembered  that  such  acts  do  not  create  an  estoppel 
when  no  power  to  issue  the  bonds  existed.  If  the  legislature  was 
without  power  to  authorize  the  issue  of  bonds  and  the  enabling 
statute  is  therefore  invalid,  the  mere  payment  of  interest  or 
other  such  acts  cannot  create  or  supplement  the  power  which  is 
lacking.21  Failure  to  enjoin  the  issue  of  bonds,  followed  by  long 
acquiescence,  has  been  held  to  work  an  estoppel.22  But  when 
suit  was  brought  twelve  years  after  the  issue  of  the  bonds  to 
secure  a  correction  of  their  form,  and  it  appeared  that  the  town 
officers  had  been  culpably  negligent,  the  relief  was  granted  as 
against  the  defendants,  who  knew  all  the  facts  and  were  trying  to 
obtain  an  unfair  advantage.23  The  mere  execution  and  delivery 
of  bonds  will  not  estop  the  corporation  from  asserting  the  non- 
performance  of  conditions  precedent.24 

§240.  By  judgment. — A  judgment  against  a  corporation 
on  a  contract,  although  by  default,  closes  the  question  of  the 
power  of  the  corporation  to  make  a  contract.  Hence,  "in  an 
action  to  enforce  the  collection  of  a  judgment,  or  the  collection 
of  bonds  or  coupons  issued  in  payment  of  a  judgment  against  a 
municipal  or  quasi-municipal  corporation,  the  judgment  conclu- 
sively estops  the  corporation  from  making  the  defense  that  the 
original  indebtedness  evidenced  by  it  was  in  excess  of  the  amount 


county  was  held  estopped  to  de-  all  the  bonds  issued  is  not  a  rati- 

fend,  although  the  bonds  contained  fication  of  those  issued  in  excess 

no  recitals.     In  Moulton  v.  Evans-  of   the   constitutional   limit.      Da- 

ville,  25  Fed.  Rep.  382,  the  court  viess  Co.  v.  Dickinson,  117  U.   S. 

said :   "While  it  is  unquestionably  657,  29  L.  ed.  1026. 

true  that  the  payment  of  interest  21  Loan  Ass'n  v.  Topeka,  20  Wall, 

will  not  validate  a  municipal  bond  (U.  S.)  655,  22  L.  ed.  455. 

issued   without  authority   of  law,  22  Supervisors  of  Marshall  Co.  v. 

yet  in  cases  where  the  objection  is,  Schenck,    5    Wall.     (U.    S.)    772; 

not  a  want  of  power  to  issue,  but  Meyer  v.   Muscatine,   1  Wall.    (U. 

of  compliance  with  a  condition,  in  S.)  384,  Contra,  as  to  mere  failure 

respect  to  which  there  may  be  an  to  enjoin.     McPherson  v.   Foster, 

estoppel  by  re'cital  or  other  act  of  43  Iowa,  48,  22  Am.  Rep.  215. 

the  city  officials,  such  payments  of  23  Town    of    Essex    v.    Day,    52 

interest  ought  to  have,  and  have  Conn.     483,  11  Am.  &  Eng.  Corp. 

been  held  to  have,  great  weight."  Cas.  265. 

See,   also,   the  remarks  of   Judge  24  Buchanan  v.  Litchfield,  102  U. 

Drummond  in  Portsmouth  Savings  S.  278.    But  see  Mutual  Ben.  Life 

Bank  v.   Springfield,  4  Fed.  Rep.  Ins.  Co.  v.  Elizabeth,  42  N.  J.  L. 

276.     The  payment  of  interest  on  235. 


240  PUBLIC   CORPORATIONS.  [§241 

which  the  corporation  had  the  power  to  create,  under  the  limita- 
tions of  the  constitution  of  the  state  in  which  it  was  incorpor- 
ated."25 

d.      RIGHTS  OF  BONA  FIDE  HOLDERS. 

§  241.  Who  are  such. — A  bona  fide  holder  of  municipal  se- 
curities is  one  who  purchases  for  value  without  notice  of  any  de- 
fect or  is  the  successor  of  one  who  was  such  a  purchaser.26  A 
purchaser  for  value  from  a  bona  fide  holder  is  entitled  to  all  the 
rights  of  such  holder,  although  such  purchaser  has  notice  of 
existing  equities.27  A  purchaser  is  not  charged  with  constructive 
notice  of  defenses  by  the  pendency  of  an  action  to  determine  the 
validity  of  the  bonds  ;28  nor  by  the  fact  that  the  bonds  were  is- 
sued in  violation  of  an  injunction  issued  in  a  proceeding  to 
which  he  was  not  a  party.29  The  presence  of  overdue  coupons 
on  a  bond  will  not  charge  the  purchaser  with  notice  of  defenses  ;30 
but  when  the  bond  states  that  default  in  the  payment  of  interest 
will  render  the  bond  due  and  payable,  the  presence  of  unpaid 
coupons  is  notice  that  the  whole  amount  of  the  bond  is  due.31 
But  a  purchaser  is  bound  to  take  notice  of  the  provision  of  the 
constitution,  the  laws  of  the  state,32  the  requirements  of  the  stat- 

25  Lake  County  v.  Platt   (C.  C.        27  Rollins  v.  Gunnison  Co.,  49  U. 
A.),    79    Fed.    567,    at    572;  Last    S.  App.  399,   80  Fed.  682;   Croin- 
Chance  Min.  Co.  v.  Tyler  Min.  Co.,     well  v.  Sac  Co.,  96  U.  S.  51 ;  Suf- 

157  U.  S.  683;  Cutler  v.  Huston,     folk    Sav.    Bank    v.    Boston,    149 

158  U.  S.  423;  Sioux  City,  etc.  R.     Mass.  364,  4  L.  R.  A.  516;  Lynch- 
Co.  v.  Osceola  Co.,  45  Iowa,  168,     burg  v.  Slaughter,  75  Va.  57. 

52  Iowa,  26 ;  Edmundson  v.  School  28  Scotland  Co.  v.  Hill,  132  U.  S. 

District    (Iowa),    67   N.   W.    671;  107. 

Howard  v.  Huron,  5  S.  D.  539,  59  29  Carroll  Co.  v.   Smith,  111  U. 

N.      W.     833,      60     N.      W.      803.  S.  556. 

In    Board    of    Commissioners    v.  so  Cromwell  v.  Sac  Co.,  96  U.  S. 

Pratt,  supra,  the  court  said :  "The  51,  24  L.  ed.  195. 

cases  of  Commissioners  v.  Loague,  31  Mayor   v.   City   Bank,  58  Ga. 

129  U.  S.  493,  and  Kelly  v.  Town  587.    As  to  what  is  sufficient  to  put 

of  Milan,  21  Fed.  842,  127  U.   S.  a  purchaser  on  inquiry,  see  Par- 

138,  are  not  in  conflict  with  this  sons    v.    Jackson,    99    U.    S.    434; 

conclusion.     The  opinion  and  the  Crow  v.  Oxford  Tp.,  119  U.  S.  215, 

effect  of  the  decision  in  the  for-  30  L.  ed.  380. 

mer  case  are  explained  and  limited  32  Knox    Co.    v.    Aspinwall,    21 

in   Franklin   Co.   v.   German    Sav.  How.  (U.  S.)  539. 

Bank,  142  U.  S.  93." 

26  McClure  v.  Oxford  Tp.,  94  U. 
S.  429. 


§  242]  MUNICIPAL  SECURITIES.  241 

ute  under  which  the  bonds  were  issued,33  the  public  records  in  re- 
lation to  the  issue,34  and  of  what  appears  upon  the  face  of  the 
instrument.35 

§  242.  Defenses  available  against  a  bona  fide  holder. — When 
bonds  are  issued  in  pursuance  of  powers  conferred  by  the  legis- 
lature they  are  valid  commercial  instruments ;  but  if  issued  with- 
out authority  they  are  invalid  even  in  the  hands  of  bona  fide 
holders  for  value.  Want  of  power  to  issue  the  securities  is  the 
only  defense  which  can  be  successfully  interposed  to  a  suit  by  a 
bona  fide  holder  for  value  who  acquired  the  bond  before  maturity 
in  reliance  upon  recitals  contained  therein  and  without  notice, 
actual  or  constructive,  of  defenses.36 

§  243.  Recitals  in  bonds. — As  between  the  original  parties 
the  question  of  compliance  with  conditions  precedent  to  the  law- 
ful issue  of  bonds  is  always  open  to  investigation.  Every  holder 
of  bonds  is  required  to  know  the  law  under  which  they  were  is- 
sued and  the  terms  and  conditions  imposed  by  the  law  upon  the 
corporation  as  limitations  upon  its  power.  Hence,  when  the 
enabling  statute  provides  that  the  bonds  shall  be  void  unless  the 
conditions  are  complied  with,  every  holder  takes  with  notice  of 
this  provision  and  must  satisfy  himself  of  the  fact  of  compli- 
ance,37 as  bonds  issued  in  violation  of  the  express  terms  of  the 
statute  are  invalid  even  in  the  hands  of  an  innocent  purchaser 
for  value.38  But  when  the  law  contemplates  that  certain  officials 

33  Manhattan  Co.  v.  Ironwood,  so  St.  Joseph  Tp.  v.  Rogers,  16 
43  TJ.  S.  App.  369,  74  Fed.  535;  Wall.  644;  Brenham  v.  German- 
Bank  v.  School  District  No.  53,  3  American  Bank,  144  U.  S.  173 ;  Bis- 
N.  D.  496,  28  L.  R.  A.  642;  Bar-  sell  v.  Kankakee,  64  111.  249. 
nett  v.  Denison,  145  U.  S.  136.  In  s?  German  Sav.  Bank  v.  Frank- 
McClure  v.  Oxford  Tp.,  94  U.  S.  lin  Co.,  128  U.  S.  526 ;  Anthony  v. 
429,  the  court  said:  "Every  dealer  Jasper  Co.,  4  Dill.  (C.  C.)  136; 
in  municipal  bonds  which  upon  Anthony  v.  Jasper  Co.,  101  U.  S. 
their  face  refer  to  the  statute  un-  693,  25  L.  ed.  1005;  Bailey  v.  Ta- 
der  which  they  were  issued  is  ber,  5  Mass.  286,  4  Am.  Dec.  57. 
bound  to  take  notice  of  the  stat-  See  §  247  as  to  over-issue, 
ute  and  of  all  its  requirements."  38  Aspinwall  v.  Daviess  Co.,  22 

s*  Brown  v.  Ingalls  Tp.,  81  Fed.  How.    (U.   S.)    364;   see  Moore  v. 

485.     See  §  247,  infra.  Mayor,  73  N.  Y.  238,  29  Am.  Rep. 

as  Brown  v.  Bon  Homme  Co.,  1  134. 
S.  D.  216,  46  N.  W.  173 ;  Aurora  v. 
West,  22  Ind.  88;  Gilson  v.  Day- 
ton, 123  U.  S.  59. 


242  PUBLIC   CORPORATIONS.  [§244 

shall  determine  when  the  prescribed  conditions  are  complied  with, 
and  such  officials  certify  to  the  facts,  the  innocent  purchaser  of 
the  bonds  is  entitled  to  rely  upon  such  certificate.39  The  rule, 
as  established  by  many  decisions,  is  thus  stated  by  Judge  Dil- 
lon:40 "If  upon  a  true  construction  of  the  legislative  enactment 
conferring  the  authority  (to  issue  the  bonds  upon  certain  con- 
ditions), the  corporations  or  certain  officers  or  a  given  body  or 
tribunal  are  invested  with  power  to  decide  whether  the  condi- 
tions precedent  have  been  complied  with,  then  it  may  well  be 
that  their  determination  of  a  matter  in  pais  which  they  are  au- 
thorized to  decide  will,  in  favor  of  the  bondholder  for  value,  bind 
the  corporation. ' '  This  rule  applies  to  non-negotiable  as  well  as 
to  negotiable  bonds.41 

§244.  Effect  of  recitals — continued. — The  rule  stated  in 
the  preceding  section  has  been  frequently  approved  by  the  su- 
preme court  of  the  United  States.  Thus,  in  a  leading  case,42  Mr. 
Justice  Strong  said,  with  reference  to  the  language  of  Judge  Dil- 
lon :  ' '  This  is  a  very  cautious  statement  of  the  doctrine.  It  may 
be  stated  in  a  slightly  different  form, — when  the  legislative  au- 
thority has  been  given  to  a  municipality  or  to  its  officers  to  sub- 
scribe to  the  stock  of  a  railroad  company  and  to  issue  bonds  in 
payment,  but  only  on  some  precedent  condition,  such  as  a  popu- 
lar vote  in  favor  of  the  subscription ;  and  where  it  may  be  gath- 
ered from  the  legislative  enactment  that  the  officers  of  the  muni- 
cipality were  invested  with  power  to  decide  whether  the  condition 
precedent  has  been  complied  with,  their  recital  that  it  has  been, 
made  in  bonds  issued  by  them  and  held  by  a  bona  fide  purchaser, 
is  conclusive  of  the  fact,  and  binding  upon  the  municipality ;  for 
the  recital  is  itself  a  decision  of  the  fact  by  the  appointed  tri- 

89  Second  Ward  Sav.  Bank  v.  the  bonds  were  issued  for  the  pur- 
City  of  Huron,  80  Fed,  660 ;  pose  stated  on  their  face.  National 
Huron  v.  S.  W.  Sav.  Bank,  86  Fed.  Life  Ins.  Co.  v.  Board  of  Edu- 
272,  30  C.  C.  A.  38 ;  Evansville  v.  cation,  62  Fed.  778,  10  C.  C.  A. 
Dennett,  161  U.  S.  434,  40  L.  ed.  637.  The  first  and  leading  case 
760.  upon  the  subject  of  the  effect  of  re- 

40  Mun.  Corp.,  I,  §  523.  citals   is   Commissioners   of   Knox 

4iFlagg  v.  School  District,  4  N.  Co.  v.  Aspinwall,  21  How.  (U.  S.) 

Dak.  30,  25  L.  R.  A.  363,  58  N.  W.  539,  decided  in  1858.  It  has  never 

499.  been  overruled  although  attacked 

42  Town  of  Coloma  v.  Eaves,  92  in  dissenting  opinions  in  later 

U.  S.  484,  23  L.  ed.  579.  A  corpo-  cases.  See  Town  of  Coloma  v, 

ration  cannot  be  heard  to  deny  that  Eaves,  supra. 


§  245]  MUNICIPAL  SECURITIES.  243 

bunal."  Hence  the  municipality  may,  by  proper  recitals  made 
by  duly  authorized  officials,  be  estopped  from  availing  itself  of 
the  defense  of  irregularities  in  the  election  held  to  authorize  the 
issue  of  bonds,43  that  the  consent  of  the  requisite  number  of  tax- 
payers has  not  been  duly  obtained,44  or  that  the  authority  to 
make  the  stock  subscription  has  expired  before  the  subscription 
was  made.45 

§245.  Authority  of  officials  to  make  recitals. — It  is  only 
when  the  officers  have  authority  to  determine  whether  or  not 
conditions  have  been  complied  with  that  their  recital  of  the  fact 
of  performance  estops  the  corporation  from  showing  non-per- 
formance. If  no  authority  exists,  the  purchaser  has  no  more 
right  to  rely  upon  their  recital  than  upon  the  certificate  of  a 
stranger.  Hence,  where  the  validity  of  the  bonds  depends  upon 
an  estoppel  claimed  to  arise  upon  the  recitals  in  the  instrument, 
the  question  being  as  to  the  existence  of  the  power  to  issue  them, 
it  is  necessary  to  establish  that  the  officers  executing  the  bonds 
had  lawful  authority  to  make  the  recitals  and  to  make  them  con- 
clusive. The  ground  of  the  estoppel  is  the  recitals  and  official 
statements  of  those  to  whom  the  law  refers  the  public  for  au- 
thentic and  final  information  on  the  subject.46  It  is  not  nec- 
essary that  the  authority  to  determine  the  facts  should  be  con- 
ferred on  the  officers  in  express  terms,  as  it  is  enough  that  the 
whole  control  of  the  matter  be  given  to  the  officers  named.47 

§246.  Recital  that  bonds  have  been  issued  "in  conformity 
to  law." — "It  is  not  necessary,"  says  the  supreme  court  of  the 


43Moran  v.  Miami  Co.,  67  TJ.  S.  ney  Co.  Com'rs,  57  Fed.  137,  6  C. 

722,  17  L.  ed.  342;  Bissell  v.  Jef-  C.  A.  288;  Brown  v.  Bon  Homme 

fersonville,  24  How.    (U.   S.)   287,  Co.,  1  S.  Dak.  216,  46  N.  W.  173; 

16  L.  ed.  664 ;  Pana  v.  Bowler,  107  Flagg  v.  School  District,  4  N.  Dak. 

U.  S.  529,  27  L.  ed.  424,  12  Am.  &  30,  25  L.  R.  A.  363,  58  N.  W.  499. 

Eng.  Ry.  Cas.  563.  4?  Bernards  Tp.  v.  Morrison,  133 

44  Town  of  Venice  v.   Murdock,  TJ.  S.  523,  33  L.  ed.  766;  Coler  v. 
92  U.  S.  494,  23  L.  ed.  583.  Dwight  School  Tp.,  3  N.  Dak.  249, 

45  Moultrie   Co.    v.    Rockingham  55  N.  W.  587,  28  L.  R.  A.  649 ;  Ful- 
Sav.  Bank,  92  U.  S.  631,  23  L.  ed.  ton  v.  Riverton,  42  Minn.  395,  44 
631.  N.  W.  257;   followed  in  St.  Paul 

46  Dixon  Co.  v.  Field,  111  U.  S.  Gaslight  Co.  v.  Sandstone,  73  Minn. 
83,   28   L.   ed.   360;    German   Sav.  225,  75  N.  W.  1050;   Brownell  v. 
Bank  v.   Franklin  Co.,   128  U.   S.  Greenwich,  114  N.  Y.  518,  4  L.  R. 
526,  32  L.  ed.  519;  Coffin  v.  Kear-  A.  685. 


244  PUBLIC  CORPORATIONS.  [§246 

United  States,48  "that  the  recital  should  enumerate  each  partic- 
ular fact  essential  to  the  existence  of  the  obligation.  A  general 
statement  that  the  bonds  have  been  issued  in  conformity  with 
the  law  will  suffice,  so  as  to  embrace  every  fact  which  the  offi- 
cers making  the  statement  are  authorized  to  determine  and  cer- 
tify. *  *  *  This  is  the  rule  which  has  been  constantly 
applied  by  this  court  in  the  numerous  cases  in  which  it  has 
been  involved.  The  differences  in  the  results  of  the  judgments 
depended  upon  the  question  whether,  in  the  particular  case 
under  consideration,  a  fair  construction  of  the  law  authorized  the 
officers  issuing  the  bonds  to  ascertain,  determine  and  certify  the 
existence  of  the  facts  upon  which  their  power,  by  the  terms  of 
the  law,  was  made  to  depend ;  not  including,  of  course,  that  class 
of  cases  in  which  the  controversy  related,  not  to  the  conditions 
precedent,  on  which  the  right  to  act  at  all  depended,  but  upon 
conditions  affecting  only  the  mode  of  exercising  a  power  ad- 
mitted to  have  come  into  being. ' '  49 

In  a  case  where  the  bonds  under  consideration  recited  that  they 
were  issued  "in  pursuance"  of  the  statute,  Mr.  Justice  Harlan 
said:50  "Legislative  authority  for  an  issue  of  bonds  being  es- 
tablished by  reference  to  the  statute,  and  the  bonds  reciting  that 
they  were  issued  in  pursuance  of  the  statute,  the  utmost  which 
plaintiff  was  bound  to  show,  to  entitle  him,  prima  facie,  to  judg- 
ment, was  the  due  appointment  of  the  commissioners  and  execu- 
tion by  them  in  fact  of  the  bonds.  It  was  not  necessary  that  he 
should,  in  the  first  instance,  prove  either  that  he  paid  value,  or 
that  the  conditions  preliminary  to  the  exercise  by  the  commis- 
sioners of  the  authority  conferred  by  statute  were,  in  fact,  per- 
formed before  the  bonds  were  issued.  The  one  was  presumed 
from  the  possession  of  the  bonds ;  and  the  other  was  established 
by  the  statute  authorizing  an  issue  of  bonds,  and  by  proof  of  the 
due  appointment  of  commissioners,  and  their  execution  of  the 

48  Dixon  Co.  v.  Field,  111  TL  S.  with  authority  to  execute  them  and 
83,  28  L.  ed.  360.  which   the  statute  conferring  the 

49  "The  facts  which  the  corpora-  power  made  it  .their  duty  to  ascer- 
tion  is  not  permitted,  as  against  a  tain    and    determine    before    the 
bona  fide  holder,  to  question  in  the  bonds     were     issued."       Northern 
face  of  a  recital  in  the  bond  of  Bank  v.  Porter  Tp.,  110  U.  S.  608 ; 
their  existence  are  those  connected  Brown  v.   Bon   Homme  Co.,   1   S. 
with   or  growing  out  of  the  dis-  D.  216,  46  N.  W.  173. 

charge  of  the  ordinary  duties  of  BO  Montclair  v.  Ramsdell,  107  U. 
such  of  its  officers  as  were  invested  S.  147. 


§  247]  MUNICIPAL   SECURITIES.  245 

bonds,  with  recitals  of  compliance  with  the  statute."51  A  re- 
cital that  the  bonds  were  executed  pursuant  to  an  order  of  the 
county  court  is  equivalent  to  an  express  statement  that  the  or- 
dinance is  in  conformity  with  the  statute.52 

§  247.  Excessive  issues. — When  the  constitution  provides 
that  public  corporations  shall  not  issue  bonds  in  an  amount 
greater  than  a  specified  percentage  of  the  valuation  of  the  tax- 
able property  within  the  corporation  limits,  to  be  ascertained  by 
the  official  valuation  for  the  purposes  of  taxation,  it  fixes  atlimit 
beyond  which  the  power  to  issue  bonds  cannot  be  conferred. 
Bonds  issued  in  excess  of  such  limit  are  void  in  the  hands  of  bona 
fide  holders,53  notwithstanding  the  fact  that  they  contain  a  re- 
cital that  they  are  issued  under  and  pursuant  to  the  constitution 
of  the  state.  But  when  the  legislature  is  the  source  of  the  law 
creating  the  limitation  a  different  rule  seems  to  apply.  After  de- 
claring the  limitation,  it  creates  or  designates  a  board  or  an  offi- 
cer as  the  authority  which  is  to  determine  whether  the  condition 
precedent  to  the  issue  has  been  complied  with.  In  such  case 
the  power  which  limits  or  restricts  may  suspend  the  restriction 
or  limitation.  The  facts  to  be  determined  by 'the  official,  such 
as  the  amount  of  taxable  property  and  the  amount  of  existing 
indebtedness,  are  extrinsic  facts,  which  bear  not  so  much  upon 
the  power  to  issue  the  bonds  as  upon  the  question  whether  or  not 
they  should  be  issued  at  the  time  in  question.54  Hence,  when 
the  designated  officials  have  determined  these  questions  and  is- 
sued the  bonds,  with  full  recitals  of  compliance  with  the  law,  they 
are  valid  in  the  hands  of  innocent  holders  for  value  although  for 
an  amount  in  excess  of  the  statutory  limit.35  But  when  the  limita- 


51  Bernards  Tp.  v.  Morrison,  133  U.  S.  657,  29  L.  ed.  1026 ;  Stockdale 
U.  S.  523,  33  L.  ed.  766 ;  Chaffee  Co.  v.    Wayland    School    District,    47 
Com'rs  v.  Potter,  142  U.  S.  355,  35  Mich.  226. 

L.  ed.  1040 ;  Cotton  v.  New  Provi-  54  Prince  v.  Crocker,  166  Mass, 

dence,  47  N.  J.  L.  401.  347,  44  N.  E.  446,  32  L.  R.  A.  610 ; 

52  Wesson  v.  Saline  Co.,  34  U.  S.  Sherman  Co.  v.  Simons,  109  U.  S. 
App.  680,  73  Fed.  917.  735,  27  L.  ed.  1093 ;  Lake  Co.  v. 

ssDixon  Co.  v.  Field,  111  U.  S.  Graham,  130  U.  S.  674;  Oregon  v. 

83,   28   L.   ed.   360;   Dillon,   Mun.  Jennings,  119  U.  S.  74,  30  L.  ed. 

Corp.,  sec.  529;  Lake  Co.  v.  Gra-  323. 

ham,  130  U.  S.  674 ;  Buchanan  v.  55  Marcy  v.  Oswego  Tp.,  92  U.  S. 

Litchfleld,  102  U.  S.  278,  26  L.  ed.  637,    23   L.    ed.    788;    New   Provi- 

138;  Daviess  Co.  v.  Dickinson,  117  dence  v.  Halsey,  117  U.  S.  336. 


246  PUBLIC   CORPORATIONS.  [§247 

tion  is  based  upon  a  public  record,  such  as  an  assessment  roll,  the 
purchaser  of  bonds  is  bound  to  take  notice  of  such  facts  as  the 
official  records  disclose  concerning  the  valuation  of  taxable  prop- 
erty. 

In  a  case  of  overissue  of  bonds  under  a  constitutional  provis- 
ion it  was  said:  5C  "Where  the  authority  to  create  a  debt  at  all, 
or  beyond  a  given  amount,  is  made  to  depend  upon  evidence  fur- 
nished by  official  records,  the  same  rule  with  regard  to  recitals  in 
bonds  given  for  the  debt  should  not  be  applied.  Every  holder  of 
such  bonds  is  charged  with  knowledge  of  all  provisions  of  law 
relating  to  their  issuance,  and  if  the  law  points  to  records  as  evi- 
dence of  the  existence  of  the  facts  required  to  authorize  their  is- 
suance, or  to  limit  the  amount  of  the  debt  the  city  may  create, 
such  records,  and  not  the  recitals  in  the  bonds,  must  be  looked 
to  by  every  one  who  proposes  to  deal  in  the  bonds." 

SB  Citizens'  Bank  v.  City  of  Ter-  thority  of  laws  which  limit  ihe 
rell,  78  Tex.  450,  at  456,  14  S.  W.  amount  of  bonds  to  be  issued  to  a 
1003;  Quaker  City  Nat.  Bank  v.  certain  percentage  of  the  assess- 
Nolan  Co.,  59  Fed.  660.  (Statu-  ment  rolls  *  *  *  are  charged 
tory  limitations)  Montpelier  Nat.  with  notice  *  *  *  of  the 
L.  Ins.  Co.  v.  Mead,  13  S.  D.  37,  amount  of  bonds  which  can  be 
342,  82  N.  W.  78,  83  N.  W.  335;  validly  issued  based  on  such  as- 
Springfield  Safe  Deposit,  etc.  Co.  v.  sessment  rolls."  Valley  Co.  v.  Mc- 
Attica,  85  Fed.  387,  29  C.  C.  A.  214.  Lean,  49  U.  S.  App.  131,  79  Fed. 
In  Francis  v.  Howard  Co.,  54  Fed.  728.  In  Shaw  v.  Independent 
Rep.  487,  the  court  said:  "All  School  District,  40  U.  S.  App.  475, 
the  decisions  of  the  supreme  court  77  Fed.  277,  it  was  held  that  the 
of  the  United  States  from  Dixon  purchaser  could  not  rely  on  the  re- 
Co,  v.  Field,  111  U.  S.  83,  to  Sut-  citals  when  the  public  records 
liff  v.  Board,  147  TJ.  S.  230,  agree  showed  that  the  constitutional 
that  the  purchasers  of  bonds  is-  limit  of  indebtedness  had  been 
sued  by  municipalities  under  au-  reached. 


CHAPTER  XVIII. 


LIMITATIONS  ON   INDEBTEDNESS. 


§  248.  Power  to  incur  debts. 

249.  The    meaning    of    indebted- 

ness. 

250.  Contingent  obligations. 


§  251.  Contracts    requiring   annual 

payments. 
252.  Anticipation  of  revenues. 


§248.  Power  to  incur  debts. — As  has  been  noticed  in  a 
former  section  a  public  corporation  may  incur  a  debt  whenever 
it  is  incident  to  the  exercise  of  a  power  to  do  some  specified 
thing  which  it  is  authorized  to  do ;  but  not  by  borrowing  money 
unless  specially  authorized.1  In  the  absence  of  limitation  the 
amount  of  the  debt  which  may  be  created  under  its  implied  power, 
or  by  borrowing  money  where  it  has  been  given  a  general  power 
to  borrow,  rests  in  the  discretion  of  the  corporation,  but  municipal 
carelessness  and  extravagance  have  led  to  the  general  adoption  of 
constitutional  or  charter  provisions  which  limit  the  amount  of 
indebtedness  which  may  legally  be  incurred.  This  limit  is  de- 
termined in  various  ways,  but  ordinarily  the  corporation  is  pro- 
hibited from  becoming  indebted  in  an  amount  greater  than  a 
specified  percentage  on  the  assessed  valuation  of  the  real  prop- 
erty within  its  limits.  "When  such  provisions  are  directed  to 
the  legislature  they  have  no  effect  upon  the  powers  already  pos- 
sessed by  corporations.  But  when  directed  to  the  municipalities 
they  repeal  all  charter  provisions  inconsistent  therewith.2  A 
person  dealing  with  such  bodies  must  take  notice  of  limitations 
upon  their  power  to  contract  debts,3  and  must  determine  for 
himself  whether  the  legal  limit  has  been  reached.4 

1  See  supra,  §  34.  *  La    Porte    v.    Gamewell    Fire 

2  List    v.    Wheeling,    7    W.    Va.  Alarm  Tel.   Co.,   146  Ind.  466,  45 
501 ;  East  St.  Louis  v.  People,  124  N.  E.  588,  35  L.  R.  A.  686,  58  Am. 
111.  655,  23  Am.  &  Eng.  Corp.  Cas.  St.  Rep.  359;   Law  v.  People,  87 
408.  111.  385;  Atlantic  City  W.  W.  Co. 

s  People  v.  May,  9  Colo.  80,  13     v.  Read,  50  N.  J.  L.  665. 
Am.  &  Eng.  Corp.  Cas.  307 ;  French 
v.  Burlington,  42  Iowa,  614. 

247 


248 


PUBLIC   CORPORATIONS. 


[§249 


§249.  The  meaning  of  indebtedness. — Such  a  prohibition 
is  generally  held  to  apply  to  indebtedness  of  all  kinds,  express 
and  implied,  current  and  bonded.5  But  the  authorities  are  far 
from  uniform.6  In  some  states  it  includes  compulsory  obliga- 
tions incurred  for  materials  which  the  county  is  required  by  law 
to  purchase,7  while  in  others  it  is  confined  to  such  debts  as  are 
voluntarily  incurred.8  Again,  there  is  a  conflict  on  the  question 
whether  it  includes  obligations  incurred  for  the  current  ex- 
penses of  the  municipality.  In  some  states  a  corporation  is  not 
permitted  to  incur  a  liability  for  ordinary  current  expenses  after 
the  constitutional  limit  of  indebtedness  has  been  reached  even 
though  it  is  covered  by  current  revenues.9  Necessity  is  no  ex- 


sLitchfield  v.  Ballou,  114  U.  S. 
190,  29  L.  ed.  132 ;  Lake  Co.  v.  Rol- 
lins, 130  id.  662,  32  L.  ed.  1060,  26 
Am.  &  Eng.  Corp.  Cas.  465.  Obli- 
gations payable  out  of  a  particular 
fund  and  for  which  the  fund  only 
is  liable  do  not  create  a  debt 
against  the  corporation.  Quill  v. 
Indianapolis,  124  Ind.  292,  23  N. 
E.  788,  7  L.  R.  A.  681;  Board  v. 
Harrell,  147  Ind.  500,  46  N.  E.  124 ; 
Little  v.  Portland,  26  Oregon,  235, 
37  Pac.  911;  Winston  v.  Spokane, 
12  Wash.  524,  41  Pac.  888;  Smith 
v.  Seattle,  25  Wash.  300,  65  Pac. 
612.  But  see  Baltimore  v.  Gill, 
31  Md.  375;  Brown  v.  Corry,  175 
Pa.  528,  34  Atl.  854.  Liabilities 
arising  ex  delicto  are  not  to  be  in- 
cluded. Ft.  D.  Elec.  Lt.  &  P.  Co. 
v.  Fort  Dodge,  115  Iowa,  568,  89 
N.  W.  7 ;  Thomas  v.  Burlington,  69 
Iowa,  140. 

e  See  review  of  authorities  in 
Swanson  v.  Ottumwa,  118  Iowa, 
161,  91  N.  W.  1048,  59  L.  R.  A.  620 
(annotated). 

7  Barnard  v.  Knox  Co.,  105  Mo. 
382,  16  S.  W.  917,  13  L.  R.  A.  244, 
overruling  Potter  v.  Douglas  Co., 
87  Mo.  240;  Lake  Co.  v.  Rollins, 
130  U.  S.  662,  reversing  Rollins  v. 
Lake  Co.,  34  Fed.  845;  Prince  v. 
Quincy,  105  111.  138 ;  Council  Bluffs 


v.  Stewart,  51  Iowa,  385,  1  N.  W. 
628;  McAleer  v.  Angell,  19  R.  I. 
688,  36  Atl.  588.  In  People  v.  May, 
9  Colo.  80,  10  Pac.  641,  the  court 
says:  "The  limitation  being  appli- 
cable to  all  debts,  irrespective  of 
their  form,  it  follows  that,  in  de- 
termining the  amount  of  the  coun- 
ty indebtedness,  county  warrants 
are  to  be  taken  into  account,  and 
any  warrant  which  increases  the 
indebtedness  over  and  beyond  the 
limit  fixed  is  in  violation  of  the 
constitution  and  void." 

s  Barnard  v.  Knox  Co.,  37  Fed. 
563,  2  L.  R.  A.  426,  note;  Grant 
Co.  v.  Lake  Co.,  17  Oreg.  453,  21 
Pac.  447 ;  Lewis  v.  Widber,  99  Cal. 
412,  33  Pac.  1128;  Gladwin  v. 
Ames,  30  Wash.  608,  71  Pac.  189; 
Thomas  v.  Burlington,  69  Iowa, 
140;  Rauch  v.  Chapman,  16  Wash. 
568,  48  Pac.  253,  58  Am.  St.  Rep. 
52,  36  L.  R.  A.  407.  Under  a  con- 
stitutional provision  which  forbids 
the  "creating"  of  indebtedness  be- 
yond the  limit,  only  debts  volun- 
tarily incurred  are  to  be  counted. 
Eaton  v.  Minnough,  43  Oregon,  465, 
73  Pac.  754. 

9  Beard  v.  Hopkinsville,  95  Ky. 
239,  24  S.  W.  872,  44  Am.  St.  Rep. 
222,  23  L.  R.  A.  402,  and  elaborate 
note;  Prince  v.  Quincy,  105  111. 


'§249] 


LIMITATIONS  ON  INDEBTEDNESS. 


249 


cuse  for  contracting  a  debt  in  excess  of  the  limit.10  Thus,  in  some 
states,  a  city  which  has  reached  the  limit  cannot  enter  into  a 
valid  contract  for  a  supply  of  water  for  a  fixed  annual  amount 
unless  provision  is  made  for  the  raising  of  the  money  to  meet  the 
obligation  as  it  accrues,  by  taxation.11  A  city,  when  already 
indebted  to  the  maximum,  cannot  issue  bonds  for  the  purpose  of 
erecting  water-works  although  it  will  acquire  property  in  ex- 
change for  said  bonds  equal  in  value  to  the  amount  of  the  bonds 
and  productive  of  revenue.12  But  a  contract  for  such  property 
does  not  create  an  indebtedness,  within  the  meaning  of  the  con- 
stitutional limitations,  if  the  entire  payment  is  to  be  made  from 
the  revenue  of  the  property,  and  the  creditor  is  to  look  to  such 
revenue  solely  for  his  security.13  Nor  can  a  city  make  a  valid 
contract  to  hire  a  market  house  for  a  stated  rental  which  would 
be  in  excess  of  the  annual  revenues  received  from  the  market.14 
When  a  debt  already  exists  a  city  may  issue  new  bonds  in  pay- 


138,  44  Am.  Rep.  785;  Sackett  v. 
New  Albany,  88  Ind.  473,  45  Am. 
Rep.  467 ;  French  v.  Burlington,  42 
Iowa,  614;  Council  Bluffs  v.  Stew- 
art, 51  id.  385 ;  State  v.  Helena,  24 
Mont.  521,  63  Pac.  99,  55  L.  R.  A. 
336.  Contra,  Grant  v.  Davenport, 
36  Iowa,  396;  Corpus  Christ!  v. 
Woessner,  58  Tex.  462;  Laycock  v. 
Baton  Rouge,  35  La.  Ann.  475.  In 
Carter  v.  Thorson,  5  S.  D.  474,  24 
L.  R.  A.  734,  it  was  held  that  a 
constitutional  provision  prohibit- 
ing "the  incurring  of  indebted- 
ness, except  in  pursuance  of  appro- 
priations," did  not  prevent  the  leg- 
islature from  incurring  or  direct- 
ing the  incurring  of  indebtedness 
for  the  usual  and  current  admin- 
istration of  state  affairs,  without 
having  first  made  an  appropriation 
for  that  specific  purpose.  Hence  a 
contract  for  doing  the  public  print- 
ing was  not  "incurring  an  indebt- 
edness." Brown  v.  Corry,  175  Pa. 
528,  34  Atl.  854. 

10  Sackett  v.  New  Albany,  88  Ind. 
473,  45  Am.  Rep.  467;  Windsor  v. 
Des  Moines,  110  Iowa,  175,  81  N. 


W.  476,  80  Am.  St.  Rep.  280. 

11  State  v.  Atlantic  City,  49  N. 
J.   L.   558,   9   Atl.   759;   Prince  v. 
Quincy,  105  111.  138,  44  Am.  Rep. 
785;  Salem  Water  Co.  v.  Salem,  5 
Oreg.  30. 

12  In     Scott    v.    Davenport,    34 
Iowa,  208,  the  court  said :  "But  the 
fact  that  the  property  for  which 
the  debt  is  contracted,  is  valuable, 
and  a  source  of  profit  or  revenue, 
does   not    remove   or   change   the 
character  of  the  indebtedness.  The 
purchaser,  having  become  bound  to 
pay,  has  incurred  an  indebtedness 
which  he  may  be  compelled  to  pay. 
Being  thus  bound,  he  is  in  debt,  no 
matter  what  amount  of  property 
he  may  have  received  in  consider- 
ation for  his  obligation."   Windsor 
v.  Des  Moines,  110  Iowa,  175,  81 
N.  W.  476,  80  Am.  St.  R.  280. 

is  See  Schnell  v.  Rock  Island, 
232  111.  89,  and  cases  cited.  If  the 
income  of  other  property  of  the 
city  is  also  pledged,  a  new  indebt- 
edness is  created. 

i*  Appeal  of  Erie,  91  Pa.  St.  398. 


250 


PUBLIC   CORPOBATIONS. 


[§249 


ment  of  it  and  of  the  interest  to  accrue  thereon.15  But  if  the  new 
bonds  are  sold  and  the  proceeds  are  not  simultaneously  used  to 
pay  the  old  bonds  a  new  debt  is  created.16  When  a  judgment 


IB  Powell  v.  Madison,  107  Ind. 
106,  8  N.  E.  31  (funding  bonds)  ; 
Palmer  v.  Helena,  19  Mont.  61,  47 
Pac.  209. 

i«Doon  Tp.  v.  Cummins,  142  U. 
S.  366,  35  L.  ed.  1044.  In  Birk- 
holtz  v.  Dinnie,  6  N.  D.  511,  72  N. 
W.  931,  it  was  held  that  the  in- 
debtedness cannot  be  increased  be- 
yond the  limit,  although  the  debt 
is  incurred  for  the  purpose  of  re- 
funding the  indebtedness  of  the 
municipality.  The  debt  is  tempo- 
rarily increased,  and  the  increase 
may  be  permanent,  owing  to  the 
loss  or  diversion  of  the  fund 
created  by  the  sale  of  the  refund- 
ing bonds.  Chief  Justice  Corliss 
said:  "We  are  unable  to  discover 
any  sound  basis  for  the  view 
which,  in  the  teeth  of  a  declara- 
tion that  the  indebtedness  shall 
never — i.  e.,  shall  not  for  a  day  or 
an  hour — exceed  a  certain  percen- 
tage of  assessed  valuation,  con- 
siders a  temporary  excess  as  not 
within  the  prohibition.  The  fact 
that  other  debts  equal  in  amount 
are  subsequently  paid  with  the 
money  does  not  destroy  the  fact 
that  the  debt  has  been  for  a  sea- 
son increased  beyond  the  constitu- 
tional limit.  We  do  not  wish  to  be 
understood  as  holding  that  refund- 
ing bonds  cannot  be  issued  to  take 
the  place  of  the  old  bonds  which 
have  matured.  An  exchange  of 
bond  for  bond  would  not  even  tem- 
porarily increase  the  indebtedness 
of  the  city  one  dollar.  It  would 
be  merely  the  substitution  of  one 
obligation  for  another.  It  would 
be  analogous  to  the  giving  of  a  re- 
newal note  at  a  bank.  If  the  ac- 


tion which  the  city  officials  pro- 
posed to  take  was  a  mere  exchange 
of  new  city  bonds  for  old  city 
bonds,  we  would  hold  such  action 
to  be  legal  upon  the  facts  in  this 
record.  Nor  do  we  consider  it  nec- 
essary that  an  exchange  of  bond 
for  bond  should  be  made.  We 
think  that  the  mere  execution  of 
refunding  bonds  may  be  author- 
ized even  beyond  the  debt  limit, 
and  that  they  may  then  be  put  on 
the  market  and  sold,  on  the  con- 
dition that  they  are  not  to  be  de- 
livered until  an  equal  amount  of 
the  old  bonds  are  surrendered. 
The  resolution  might  provide  that, 
simultaneously  with  the  delivery 
of  the  refunding  bonds  and  the 
payment  of  the  cash  therefor, 
there  should  be  at  hand  an  equal 
amount  of  the  old  bonds,  to  be 
then  and  there  extinguished  by  the 
use  of  the  cash  so  received  and  de- 
livered up  to  the  city  as  part  of 
the  same  transaction.  But  the 
purpose  of  the  city  officials  is  some- 
thing radically  different  from  an 
exchange  or  a  sale  guarded  in  the 
manner  specified.  Their  plan  is  to 
sell  the  bonds  of  the  city,  thus  in- 
creasing the  indebtedness  thereof 
against  the  prohibitions  of  the  con- 
stitution, and  leaving  uncertain  the 
question  whether  the  old  debt  will 
be  fully  extinguished,  or  whether 
a  dollar  of  it  will  be  paid.  The 
scheme  is  to  pay  the  old  debt  with 
the  proceeds  of  the  new ;  but  there 
is  no  absolute  certainty,  although 
there  may  be  a  probability,  that 
this  will  be  done.  Nothing  short 
of  a  certainty  that  the  debt  will 
not  be  increased  permanently  will 


§250] 


LIMITATIONS   ON   INDEBTEDNESS. 


251 


has  been  obtained  upon  an  obligation  not  within  the  prohibition, 
bonds  may  be  issued  for  its  satisfaction  without  increasing  the 
indebtedness  of  the  municipality.17  When  suitable  provision  has 
been  made  for  the  discharge  of  an  obligation,  or  the  money  is  in 
the  treasury  to  meet  it,  the  drawing  of  a  warrant  upon  the  treas- 
ury for  the  payment  of  such  obligation  or  claim  does  not  create 
a  debt.18  The  amount  of  a  sinking  fund  must  be  deducted  from 
the  apparent  debt  of  a  city  in  order  to  ascertain  its  total  in- 
debtedness.19 But  money  raised  and  set  apart  in  the  treasury 
for  the  purpose  of  payment  is  not  to  be  considered  as  reducing 
the  indebtedness,  unless  by  some  legal  action  the  fund  has  been 
irrevocably  devoted  and  assigned  to  the  defraying  of  the  debt.20 
Park-board  certificates,  secured  by  mortgage  on  real  estate,  and 
payable  only  out  of  a  fund  arising  from  assessments  for  bene- 
fits, are  not  a  part  of  the  indebtedness  of  the  city.21 

§250.  Contingent  obligations. — An  obligation  payable  in 
the  future  is  as  much  a  debt  as  though  due  immediately.22  The 
time  when  it  comes  into  existence,  and  not  when  due,  must  be  con- 


suffice,  and  even  that  will  not  suf- 
fice if  it  is  temporarily  augmented 
beyond  the  constitutional  limit. 
We  admit  that  there  appear  to  be 
some  decisions  opposed  to  our  rul- 
ing. It  can  probably  be  said  that 
the  weight  of  authority  is  against 
our  view.  See  City  of  Poughkeep- 
sie  v.  Quintard,  136  N.  Y.  275,  32 
N.  E.  764 ;  Powell  v.  City  of  Madi- 
son, 107  Ind.  106,  8  N.  E.  31 ;  Board 
of  Com'rs  of  Marion  Co.  v.  Board 
of  Com'rs  of  Harvey  Co.,  26  Kan. 
181,  201;  Opinion  of  the  Justices, 
81  Me.  602,  18  Atl.  291 ;  Hotchkiss 
v.  Marion,  12  Mont.  218,  29  Pac. 
821 ;  Los  Angeles  v.  Teed,  112  Cal. 
319,  44  Pac.  580;  Miller  v.  School 
Dist.  5  Wyo.  217,  39  Pac.  879; 
Palmer  v.  City  of  Helena,  19  Mont. 
61,  47  Pac.  209.  But  in  one  of  these 
cases  no  question  of  constitutional 
prohibition  was  involved.  City  of 
Poughkeepsie  v.  Quintard,  136  N. 
Y.  275,  32  N.  E.  764.  In  none  of  the 


cases  was  the  inhibition  of  the 
fundamental  law  so  sweeping  in 
terms  as  ours." 

"Board  of  Com'rs  v.  Platt  (C. 
C.  A.),  79  Fed.  567;  Sioux  City  v. 
Weare,  59  Iowa,  95. 

is  Springfield  v.  Edwards,  84  111. 
626. 

is  Kelly  v.  Minneapolis,  63  Minn. 
125,  65  N.  W.  115,  30  L.  R.  A.  281. 
As  to  what  should  not  be  included, 
see  (sum  to  be  paid  monthly  for 
lighting  streets  of  a  borough  for 
a  certain  term)  Wade  v.  Oakmont, 
165  Pa.  St.  479;  (city  "stock") 
New  York  Bank  v.  Grace,  102  N. 
Y.  313;  (indebtedness  arising  in 
tort)  Thomas  v.  Burlington,  69 
Iowa,  140;  Austin  v.  Seattle,  2 
Wash.  667. 

aoWabash  R.  Co.  v.  People,  202 
111.  9. 

21  Kelly  v.  Minneapolis,  supra. 

22  Law  v.  People,  87  111.  385. 


252  PUBLIC   CORPORATIONS.  [§  251 

sidered  in  applying  the  rule  of  limitation  upon  indebtedness.23 
The  character  of  the  obligation  as  a  liability  is  not  affected  by  the 
fact  that  it  is  not  to  be  paid  until  some  condition  has  been  per- 
formed by  the  payee.  Thus,  where  a  city  obligated  itself  to  pay  a 
sum  of  money  upon  the  completion  of  a  certain  work,  the  court 
said :  "It  cannot  be  said  that  the  indebtedness  did  not  come  into 
being  until  the  work  was  completed  and  accepted  by  the  city.  The 
city  bound  itself  to  pay  for  the  work  when  it  should  be  completed, 
and  it  could  be  compelled  to  do  so  if  the  work  should  be  done 
according  to  contract. "  24  In  another  case  it  was  said :  25  ' '  It  is 
believed  the  constitution  not  only  applies  to  a  present  indebted- 
ness, but  also  to  such  as  is  payable  on  a  contingency  at  some 
future  day,  or  which  depends  on  some  contingency  before  a  liabil- 
ity is  created.  But  it  must  appear  that  such  contingency  is  sure  to 
take  place  irrespective  of  any  action  taken  or  option  exercised 
by  the  city  in  the  future.  That  is,  if  a  present  indebtedness  is 
incurred,  or  obligations  assumed,  which  without  further  action 
on  the  part  of  the  city  has  the  effect  to  create  such  an  indebted- 
ness at  some  future  day,  such  are  within  the  inhibition  of  the 
constitution.  But  if  the  fact  of  the  indebtedness  depends  upon 
some  act  of  the  city,  or  upon  its  volition,  to  be  exercised  or  de- 
termined at  some  future  date,  then  no  present  indebtedness  is 
incurred,  and  none  will  be  until  the  period  arrives  and  the  re- 
quired act  or  option  is  exercised,  and  from  that  time  only  can  it 
be  said  there  exists  an  indebtedness." 

§251.  Contracts  requiring  annual  payments. — Some  very 
difficult  questions  have  arisen  under  these  limitations  upon  in- 
debtedness in  connection  with  contracts  which  require  the  cor- 
poration to  pay  a  fixed  annual  or  monthly  sum  during  a  period 
of  years  for  water,  lighting,  the  disposal  of  sewage  and  such 
other  purposes.  Many  of  the  authorities  are  in  conflict  with  the 
principles  stated  in  the  preceding  section.  But  careful  atten- 

23  La  Porte  v.  Gamewell  F.  A.  (with  elaborate  note  on  what  con- 
Tel.   Co.,   146  Ind.   466,   45  N.   E.  stitutes  indebtedness). 
588,  35  L.  R.  A.  686,  58  Am.  St.  25  Burlington      Water      Co.      v. 
Rep.  359.  Woodward,  49  Iowa,  58,  at  62.  But 

2*Culbertson  v.  Fulton,  127  111.  see  Keihl  v.  City  of  South  Bend, 

30,  18  N.  E.  781 ;  Springfield  v.  Ed-  76  Fed.  921,  36  L.  R.  A.  228 ;  Peo- 

wards,  84  111.  626;  Beard  v.  Hop-  pie  v.  Arguello,  37  Cal.  524;  Do- 

kinsville,  95  Ky.  239,  24  S.  W.  872,  land  v.  Clark,  143  Cal.  176,  76  Pac. 

44  Am.  St.  R.  222,  23  L.  R.  A.  402  958. 


§251] 


LIMITATIONS   ON  INDEBTEDNESS. 


253 


tion  must  be  given  the  particular  charter  under  consideration, 
as  the  right  may  be  determined  by  constitutional  provisions  re- 
lating to  taxation  and  appropriations.  The  supreme  court  of 
Michigan  said:26  "There  can  be  no  doubt,  in  our  opinion,  that 
this  whole  contract  obligation  is  a  liability  to  the  full  extent  of 
the  thirty  years'  rental.  And  it  is  equally  clear  that  all  unpaid 
sums  will  be  aggregated  until  paid."  The  contract  was  there- 
fore held  void.  The  same  conclusion  has  been  reached  in  Ohio,27 
New  Jersey,28  Oregon,29  Montana,30  Minnesota,31  and  Pennsyl- 
vania.32 On  the  other  hand,  Illinois,33  Massachusetts,34  Iowa,35 
New  York,36  Indiana,  37  Oklahoma,38  California 39  and  Mis- 
souri 40  hold  such  contracts  not  in  violation  of  the  prohibition. 


26  Mies  W.  W.  v.  Niles,  59  Mich. 
31,  26  N.  W.  525. 

si  State  v.  Medbery,  7  Ohio  St. 
523. 

28  Atlantic  City  W.  W.  v.  Read, 
49  N.  J.  L.  558,  50  N.  J.  L.  665, 
9  Atl.  759. 

29  Salem  W.  W.  v.  Salem,  5  Oreg. 
29 ;     Brockway    v.     Roseburg,    46 
Oreg.  77,  79  Pac.  335. 

so  Davenport  v.  Kleinschmidt,  6 
Mont.  502,  13  Pac.  249;  State  v. 
Helena,  24  Mont.  521,  63  Pac.  99, 
55  L.  R.  A.  336. 

siKiichli  v.  Minn.  Brush  Elec- 
tric Co.,  58  Minn.  418,  59  N.  W. 
1088. 

32  in  re  Erie's  Appeal,  91  Pa.  St. 
398 ;  Wade  v.  Oakmont  Borough, 
165  Pa.  St.  479;  Brown  v.  City  of 
Corry,  175  Pa.  528,  34  Atl.  854. 

as  East  St.  Louis  v.  East  St. 
Louis  Gas  L.  Co.,  98  111.  415, -38 
Am.  Rep.  97.  But  see  Prince  v. 
Quincy,  105  111.  138,  44  Am.  Rep. 
785;  B.  &  O.,  etc.  R.  Co.  v.  Peo- 
ple, 200  111.  541.  Illinois  has  ap- 
parently adopted  the  other  rule. 

s*  Smith  v.  Dedham,  144  Mass., 
177. 

35  Grant  v.  Davenport,  36  Iowa, 
396. 

3«  Weston  v.  Syracuse,  17  N.  Y. 
110. 


37  La  Porte  v.  Gamewell  F.  A.' 
Tel.  Co.,  146  Ind.  466,  45  N.  E. 
588,  35  L.  R.  A.  686;  Crowder  v. 
Town  of  Sullivan,  128  Ind.  486,  28 
N.  E.  94,  13  L.  R.  A.  647;  Valpar- 
aiso v.  Gardner,  97  Ind.  1,  49  Am. 
Rep.  416;  Voss  v.  Waterloo  Water 
Co.,  163  Ind.  69,  71  N.  E.  208.  See 
Indianapolis  v.  Wann.  144  Ind. 
175,  4  N.  E.  901,  31  L.  R.  A.  743. 

ss  Territory  v.  Oklahoma,  2  Okla. 

158,  37  Pac.  1094. 

39McBean    v.    Fresno,    112    Cal. 

159,  44  Pac.  358,  5  Am.  St.  R.  191, 
31  L.  R.  A.  794;  Doland  v.  Clark, 
143  Cal.  116,  76  Pac.  958. 

*oLamar  Water  &  E.  L.  Co.  v. 
City  of  Lamar,  128  Mo.  188,  26  S. 
W.  1025,  31  S.  W.  756,  32  L.  R.  A. 
157.  In  Saleno  v.  City  of  Neosho, 
127  Mo.  627,  30  S.  W.  190,  27  L.  R. 
A.  769,  48  Am.  St.  R.  653,  the  court 
said:  "In  construing  words  used 
in  that  instrument,  in  the  absence 
of  some  restriction  placed  upon 
their  meaning,  they  must  be  given 
such  meaning  as  is  generally  ac- 
corded to  them.  A  debt  is  under- 
stood to  be  an  unconditional  prom- 
ise to  pay  a  fixed  sum  at  some 
specified  time,  and  is  quite  differ- 
ent from  a  contract  to  be  per- 
formed in  the  future,  depending 
upon  a  condition  precedent,  which 


254 


PUBLIC   CORPORATIONS. 


[§252 


"We  base  our  views,"  says  the  supreme  court  of  California, 
"upon  the  conviction  that  at  the  time  of  entering  into  the  con- 
tract no  debt  or  liability  is  created  for  the  aggregate  amount  of 
the  instalments  to  be  paid  under  the  contract,  but  that  the  sole 
debt  or  liability  created  is  that  which  arises  from  year  to  year  in 
separate  amounts  as  the  work  is  performed."  Where  a  city  con- 
tracted for  a  fire-alarm  system  at  a  time  when  it  was  indebted 
beyond  the  constitutional  limit  and  had  no  money  in  the  treasury 
at  the  time  when  the  contract  was  made  or  the  work  accepted, 
the  contract  was  held  to  create  a  liability  within  the  prohibition, 
notwithstanding  the  fact  that  there  was  money  in  the  treasury 
at  the  time  fixed  for  payment.41 

§  252.  Anticipation  of  revenues. — In  some  states  a  munici- 
pality which  has  reached  its  constitutional  limit  of  indebtedness 
is  permitted  to  anticipate  the  collection  of  the  revenues  appro- 
priated to  its  use  by  drawing  warrants  against  taxes  levied  but 
not  collected.  The  result  is  a  substantial  appropriation  and  as- 


may  never  be  performed,  and  which 
cannot  ripen  into  a  debt  until  per- 
formed. Here  the  hydrant  rental 
depended  upon  the  water  supply 
to  be  furnished  to  defendant,  and 
if  not  furnished,  no  payment  could 
be  required."  "The  weight  of  the 
decisions,  and  which  we  regard  to 
be  the  proper  view  of  the  question, 
is  that  such  a  contract  is  not  pro- 
hibited, even  if  the  total  amount 
which  the  corporation  will  have  to 
pay  will,  with  the  other  debts  of 
the  municipality,  exceed  the  statu- 
tory or  constitutional  limitations. 
Only  the  annual  payment  of  the 
year  when  the  calculation  is  made 
should  be  considered  as  a  debt." 
Simonton,  Municipal  Bonds,  §  60. 

*i  In  La  Porte  v.  Gamewell  F.  A. 
Tel.  Co.,  supra,  the  court  said: 
"When  a  municipal  corporation 
contracts  for  a  usual  and  neces- 
sary thing,  such  as  water  or  light, 
and  agrees  to  pay  for  it  annually 
or  monthly,  as  furnished,  the  con- 
tract does  not  create  an  indebt- 


edness for  the  aggregate  sum  of 
the  instalments,  since  the  debt  for 
each  year  or  month  does  not  come 
into  existence  until  it  is  earned. 
The  earning  of  each  year's  or 
month's  compensation  is  essential 
to  the  existence  of  the  debt.  If  the 
city  can  pay  this  indebtedness 
when  it  comes  into  existence,  with- 
out exceeding  the  constitutional 
limit,  there  is  no  indebtedness,  and 
therefore  no  violation  of  the  con- 
stitution. But  if  the  indebtedness 
of  the  city  already  equals  or  ex- 
ceeds the  constitutional  limit,  and 
the  current  revenues  are  not  suffi- 
cient to  pay  said  indebtedness 
when  it  comes  into  existence,  in- 
cluding other  expenses  for  which 
the  city  is  liable,  an  indebtedness 
is  thereby  created,  and  there  is  a 
violation  of  the  constitution." 
Walla  Walla  Water  Co.  v.  City  of 
Walla  Walla,  60  Fed.  957 ;  Keihl  v. 
City  of  South  Bend,  76  Fed.  921, 
36  L.  R.  A.  228. 


§  252]  LIMITATIONS  ON  INDEBTEDNESS.  255 

signment  of  the  amount  drawn  to  the  holder  of  the  warrant.  In 
order  that  such  warrants  may  not  increase  the  indebtedness  of  the 
municipality  it  is  necessary  that  the  tax  should  not  only  be  levied 
but  that  the  warrant  be  drawn  on  the  particular  fund  and  be  in 
legal  effect  sufficient  to  discharge  the  city.42 

42  Ash  v.  Parkinson,  5  Nev.  15 ;  v.  Davenport,  36  Iowa,  396 ;  Shan- 
Springfield  v.  Edwards,  84  111.  626 ;  non  v.  Huron,  9  S.  D.  356,  69  N.  W. 
Law  v.  People,  87  111.  385 ;  French  598 ;  Dively  v.  Cedar  Falls,  27 
v.  Burlington,  42  Iowa,  614 ;  Grant  Iowa,  227. 


CHAPTER  XIX. 


LEGISLATIVE  CONTROL  OVER  PUBLIC  CORPORATIONS. 


§  253.  Legislative  power  over  char- 
ters. 

254.  Right   to   local    self-govern- 

ment. 

255.  Legislative  power  over  prop- 

erty. 

256.  Roads  and  streets. 

257.  Rights  in  the  nature  of  fran- 

chises. 

258.  Disposition  of  property  upon 

dissolution. 

I.  POWER  OVEB  OFFICES  AND  OFFI- 
CERS. 

259.  Various  kinds  of  officers. 

260.  Police  officials. 

261.  Their  appointment  and  pay- 

ment. 

262.  Park  commissioners. 

263.  Other  public  works. 

264.  The  mayor. 

II.  FUNDS  AND  REVENUES. 

265.  Power  over  revenue  of  pub- 

lic corporations. 

266.  From  rights  in  the  nature  of 

franchises. 


III.  LEGISLATIVE    CONTROL    OVER 

CONTRACTS. 

§  267.  Rights   of  parties   contract- 
ing with  corporation. 

268.  Illustrations. 

269.  Rights  in  a  sinking  fund. 

270.  Limitation   of   indebtedness. 

271.  Power  to  deprive  a  munici- 

pality of  contract  rights. 

IV.  THE  POWER  TO  IMPOSE  OBLIGA- 

TIONS. 

272.  Nature  of  the  debt. 

273.  Compulsory  taxation. 

274.  Construction  of  highways. 

275.  Support  of  public  schools. 

276.  Local   corporate  purposes. 

277.  Subscription  for  stock. 

278.  Compulsory    payment   of 

claims. 

V.  THE  TERRITORY  AND  THE  BOUND- 

ABIES. 

279.  The  general  rule. 

280.  What  territory  may  be  an- 

nexed. 

281.  Illustrations. 

282.  Property  and  debts  upon  di- 

vision of  territory. 


§253.  Legislative  power  over  charters. — In  considering 
the  extent  of  legislative  power  over  public  corporations,  it  must 
be  remembered  that  such  power  is  subject  to  the  constitutional 
limitations  upon  legislative  action  in  general,  both  as  to  substance 
and  manner  of  execution.  Constitutional  provisions  regarding 
general  and  special  laws,  titles  of  acts,  and  the  like,  must,  as  a 
matter  of  course,  be  observed  in  legislation  with  reference  to  pub- 
lic corporations  as  well  as  in  all  other  cases.  But,  from  the  fact 
that  such  corporations  are  created  by  the  legislature  for  govern- 


256 


§254] 


LEGISLATIVE   CONTROL. 


257 


mental  purposes,  and  that  their  rights  rest  on  legislation  and  not 
on  contract,  it  follows  that  the  legislative  control  over  the  char- 
ters of  such  bodies  is  practically  absolute  unless  restricted  by  ex- 
press or  implied  constitutional  limitations.  That  is,  unless  there 
is  an  express  limitation  upon  the  general  power  of  the  legislature, 
it  may  create,  change  or  abolish  public  corporations  with  or  with- 
out the  consent  of  the  inhabitants.1  The  legislature  may,  how- 
ever, submit  the  question  of  the  acceptance  of  an  amendment  to 
its  charter  to  the  people,  although  it  is  under  no  obligation  to  do 
so.2  The  fact  that  a  city  charter  is  recognized  in  the  constitution 
of  the  state  does  not  necessarily  place  it  beyond  the  control  of  the 
legislature.3  The  annexation  of  territory  to  a  city  is  not  an 
amendment  of  its  charter.4 

§  254.  Right  to  local  self-government. — Although  the  abso- 
lute power  of  the  legislature  over  the  constituent  statute^  of 
governmental  corporations  which  are  purely  state  agencies,  such 
as  counties,5  is  almost  universally  conceded,  there  has  been  some 
difference  of  opinion  in  respect  to  municipal  corporations.  A 


1  St.  Louis  v.  Russell,  9  Mo.  508 ; 
St.    Louis    v.   Allen,    13   Mo.   400; 
Dartmouth  College  v.  Woodward,  4 
Wheaton,  518 ;  Laramie  Co.  v.  Al- 
bany Co.,  92  U.  S.  307;  People  v. 
Bennett,  29  Mich.  451;  Wallace  v. 
Trustees,   84  N.   C.  164;    State  v. 
Kolsem,  130  Ind.  434,  14  L.  R.  A. 
566;  North  Yarmouth  v.   Skilling, 
45  Me.  133,  71  Am.  Dec.  530 ;  Clag- 
horn  v.  Cullen,  13  Pa.  St.  133,  53 
Am.  Dec.  450,  cases  cited  on  page 
470  of  note;  Smith  v.  Wescott,  17 
R.  I.  366,  13  L.  R.  A.  217;  Meri- 
wether  v.  Garrett,  102  U.  S.  472; 
Broughton  v.  Pensacola,  93  U.   S. 
266. 

2  People  v.   Nally,   49   Cal.  478; 
Foote  v.  Cincinnati,  11  Ohio,  408, 
38  Am.  Dec.  737. 

s  Mayor  of  Baltimore  v.  State, 
15  Md.  376,  74  Am.  Dec.  572,  and 
note. 

*  State  v.  Warner,  4  Wash.  263, 
17  L.  R.  A.  263. 


5  A  county  organization  is  cre- 
ated almost  exclusively  with  a 
view  to  the  policy  of  the  state  at 
large  for  purposes  of  political  or- 
ganization and  civil  administration 
in  matters  of  finance,  of  educa- 
tion, of  provision  for  the  poor,  of 
military  organization,  of  the  means 
of  travel  and  transport,  and  espe- 
cially for  the  general  administra- 
tion of  justice.  With  scarcely  an 
exception,  all  the  powers  and  func- 
tions of  the  county  organization 
have  a  direct  and  exclusive  refer- 
ence to  the  general  policy  of  the 
state,  and  are  in  fact  but  a  branch 
of  the  general  administration  of 
that  policy."  Treadway  v.  Schiiau- 
ber,  1  Dak.  233;  Hamlin  v.  Mead- 
ville,  6  Neb.  227;  Talbot  Co.  v. 
Queen  Anne  Co.,  50  Md.  245 ;  Han- 
nibal v.  Marion  Co.,  69  Mo.  571. 


17 


258  PUBLIC   CORPORATIONS.  [§  254 

few  courts  have  asserted  a  right  in  the  inhabitants  of  cities  and 
towns  to  some  form  of  organization  for  self-government,  and  have 
denied  the  power  of  the  legislature  to  take  away  from  them  all 
discretion  as  to  municipal  matters  and  exercise  that  discretion  it- 
self or  provide  for  either  its  exercise  or  its  execution  by  state-ap- 
pointed officers.  In  a  leading  Michigan  case,6  a  legislature,  in 
a  special  statute,  had  appointed  certain  persons  a  board  of  public 
works  for  the  city  of  Detroit,  and  provided  that  the  board  should 
have  charge  of  the  city's  buildings,  property,  and  local  conveni- 
ences, should  make  city  contracts,  and  do  many  things  of  a  legis- 
lative kind  which  are  usually  entrusted  to  a  city  council.  The 
court  declared  the  statute  inoperative,  holding  that  the  inhabit- 
ants had  a  constitutional  right  to  self-government  in  respect  to 
local  affairs — a  right  founded  on  the  customs  of  the  English 
race  impliedly  confirmed  by  our  constitutions,  which  forbids  that 
the  £tate  should  assume  control  in  such  matters.  This  rule  has 
been  adhered  to  in  Michigan,7  and  sanctioned  in  several  other 
states.8 

By  other  strong  authorities,  on  the  other  hand,  it  is  held  that, 
without  special  constitutional  provision,  all  power  of  local  self- 

e  People  v.  Hurlbut,  24  Mich.  44,  right  to  powers  of  local  self-gov- 

9  Am.  Rep.  103.  ernment    was    recognized    by    the 

T  (Park)  People  v.  Detroit  Coin-  same  learned  judge  in  the  same 
mon  Council,  28  Mich.  228,  15  Am.  opinion :  "While  it  is  a  funda- 
Rep.  203;  (drains;  county)  Attor-  mental  principle  in  the  state,  recog- 
ney  General  v.  McClear,  146  Mich,  nized  and  perpetuated  by  express 
45;  (roads;  county)  Wayne  Co.  provisions  of  the  constitution,  that 
Road  Commrs.  v.  Auditors,  148  the  people  of  every  hamlet,  town 
Mich.  255;  (fire  department)  Dav-  and  city  of  the  state  are  entitled 
idson  v.  Hine,  151  Mich.  294.  In  to  the  benefits  of  local  self-govern- 
People  v.  Detroit  Common  Council,  ment,  the  constitution  has  not 
supra,  Cooley,  J.,  said:  "Whoever  pointed  out  the  precise  extent  of 
Insists  upon  the  right  of  the  state  local  powers  and  capacities,  but 
to  interfere  and  control  by  com-  has  left  them  to  be  determined  in 
pulsory  legislation  the  action  of  a  each  case  by  the  legislative  author- 
local  constituency  in  matters  ex-  ity  of  the  state,  from  considerations 
clusively  of  local  concern  should  of  good  policy  as  well  as  those 
be  prepared  to  defend  a  like  inter-  which  pertain  to  the  local  benefit 
ference  in  the  action  of  private  and  local  desires." 
corporations  and  natural  persons."  »  State  ex  rel  Jameson  v.  Denny, 
But  this  is  a  most  extreme  view.  118  Ind.  382,  21  N.  E.  252,  4  L.  R. 

The  chief  difficulty  in  the  way  of  A.  65 ;  State  ex  rel  Holt  v.  Denny, 

asserting   that  the  inhabitants  of  118  Ind.  449,  21  N.  E.  274,  4  L.  R. 

localities     have    a     constitutional  A.  79 ;  People  v.  Coler,  166  N.  Y.  1, 


§  254]  LEGISLATIVE   CONTROL.  259 

government  is  held  subject  to  the  will  of  the  legislature ;  that  a 
legislature  may  direct  the  action  of  a  city  or  town  in  local  mat- 
ters, and  may  provide  for  the  appointment  of  municipal  officers 
by  the  state.9  In  some  states,  however,  the  constitutions  pro- 
hibit the  legislatures  from  taxing  municipalities  compulsorily  for 
local  purposes,  and  permit  it  to  vest  the  power  to  do  so  only  in 
the  "corporate  authorities"  of  cities  and  towns,  which  term  is 
taken  to  mean  either  the  local  electorate,  a  local  representative 
body,  or  an  agency  appointed  in  any  mode  to  which  the  inhabit- 
ants have  voted  their  assent.10 

In  New  York,  the  Michigan  rule  as  regards  the  appointment 
of  officers  is  adopted  by  constitution,  which  provides  that  "all 
city,  town  and  village  officers,  whose  election  or  appointment  is 
not  provided  for  by  the  constitution,  shall  be  elected  by  the  elec- 
tors of  such  cities,  towns  or  villages,  or  appointed  by  such  au- 
thorities thereof  as  the  legislature  thereof  shall  designate."11 
This  provision  was  held  to  secure  to  the  citizens  of  the  munici- 
palities immunity  from  legislative  interference  with  the  election 
or  appointment  of  purely  municipal  officers;12  but  not  to  pre- 
vent the  appointment  by  the  legislature  of  commissioners  for  the 
improvement  of  the  streets  of  a  city.13 


at  12,  59  N.  E.  716.    In  re  Mayor,  David  v.  Portland  Water  Commit- 

182  N.  Y.  361,  at  366,  75  N.  E.  156 ;  tee,   14   Oregon,   98,   12   Pac.   174 ; 

People  v.  Tax  Commrs.  174  N.  Y.  see  State  v.  Barker,  116  la.  96,  89 

417,  67  N.  E.  69;  ex  parte  Corliss,  N.    W.    204,   and   cases   collected. 

(N.  Dak.  1907),  114  N.  W.  962,  col-  For  a  discussion  of  the  tendency 

lecting  the  authorities  pro  and  con.  toward     depriving     municipalities 

9  "We  cannot  declare  an  act  of  of  the  right  of  self-government,  see 

the  legislature  invalid  because  it  Goodnow's  Municipal  Problems,  p. 

abridges  the  privileges  of  self-gov-  9;   Bryce,   Am.   Comw.,   I,  p.   630, 

ernment  in  a  particular  in  regard  chapter  on  Municipal  Government, 

to  which  such  privilege  is  not  guar-  contributed  by  Pres.  Low   of  Co- 

anteed   by   the   provisions   of   the  lumbia  University, 

constitution."     Comm.  v.  Plaisted,  i»  Supervisors  v.  People,  110  111. 

148  Mass.  375,  19  N.  E.  224,  2  L.  R.  511,  Wetherell  v.  Devine,  116  111. 

A.   142;    Brodbine   v.   Revere,   182  631,  6  N.  E.  24;   State  v.  Mayor, 

Mass.  598,  66  N.  E.  607 ;  State  v.  etc.,  103  la.  76,  72  N.  W.  639,  and 

Williams,  68  Conn.  131,  35  Atl.  24,  cases  cited. 

421,  48  L.  R.  A.  465 ;    (Galveston  11  Const,  of  N.  Y.,  Art.  10,  s.  2. 

commission)    Brown  v.   Galveston,  12  People  v.  Albertson,  55  N.  Y. 

97  Tex.  1,  75  S.  W.  488 ;  In  re  Sen-  50. 

ate  Bill,  12  Colo.  188 ;  Daley  v.  St.  ™  Astor  v.  New  York,  62  N.  Y. 

Paul,    7    Minn.    390     (Gil.    311)  ;  567. 


260  PUBLIC   CORPORATIONS.  [§255 

§255.  Legislative  power  over  property. — The  general  lim- 
itation of  the  taxing  power  forbids  that  the  legislature  should 
appropriate  property  which  has  been  acquired  by  means  of  local 
taxation  to  the  use  of  a  different  community,  or  to  that  of  the  state 
at  large.14  To  do  so  would  be  in  effect  to  tax  one  community 
for  the  use  of  a  different  one. 

The  more  difficult  question  is  how  far  the  legislature  can  in- 
terfere with  the  legal  title  or  direct  the  use  of  such  property. 
Here  the  distinction  between  property  held  for  state  uses,  such  as 
that  which  has  been  dedicated  to  general  public  use,  and  that 
held  for  uses  in  which  the  state  has  no  interest,  becomes  again 
prominent.  As  property  of  the  former  class  is  held  by  the  local 
agency  merely  as  an  instrument  of  the  state,  its  title  and  use  are 
within  the  control  of  the  legislature.15  Property  of  the  latter 
class,  such  as  markets,  cemeteries,  commons,  water  and  light 
works,  have  been  held  to  come  within  the  constitutional  provi- 
sion which  forbids  the  taking  of  private  property  without  com- 
pensation or  due  process  of  law.  The  state  cannot  deprive  the 
corporation  of  the  title  or  control,  or  change  the  purpose  for 
which  the  property  is  employed.16 

Thus,  where  a  city  held  certain  real  estate  in  fee-simple  ab- 
solute, under  ancient  grants,  and  had  at  the  expense  of  the  eiti- 
zens  constructed  reservoirs  upon  a  portion  of  such  real  estate, 
it  was  held  that  the  legislature  had  no  power  to  require  that  the 
reservoir  be  destroyed  and  the  land  converted  into  a  public  park 
without  compensation  to  the  city.17 

14  State  v.  Haben,  22  Wis.  629.  IT  Webb  v.  Mayor,  64  How.  Pr. 

is  (Highways)  Clinton  v.  Rail-  10.  "It  seems  to  me,"  said  Mc- 

road  Co.,  24  Iowa,  455;  State  v.  Comber,  J.,  "that  the  weight  of 

St.  Louis  Co.  Court,  34  Mo.  546.  authority  is  to  the  effect  that  the 

But  how  under  the  Michigan  rule  property  which  New  York  holds  in 

regarding  right  of  local  self-gov-  its  proprietary  or  private  charac- 

ernment.  Wayne  Co.  Road  ter,  though  originally  derived  from 

Commrs.  v.  Auditors,  148  Mich,  a  power  claiming  the  ultimate  title, 

255.  and  which  concerns  the  private 

is  (Cemetery)  Prop,  of  Mt.  Hope  advantage  of  the  corporation  as  a 

Cemetery  v.  Boston,  158  Mass.  509,  distinct  legal  personality,  is 

33  N.  E.  695  ;  (park)  Webb  v.  New  stamped  with  so  many  of  the  rights 

York,  64  How.  Pr.  10;  (bonds  and  powers  of  natural  persons  or 

granted  by  the  state)  Spaulding  v.  private  corporations  as  that  the 

Andover,  54  N.  H.  38;  State  v.  city  cannot  be  deprived  of  this 

Barker,  116  la.  96,  89  N.  W.  204,  reservoir  without  due  process  of 

and  cases  cited.  law  and  without  just  compensation. 


§  255]  LEGISLATIVE   CONTROL.  261 

It  seems  well  settled  that  municipal  corporations  have,  as 
against  the  state,  a  twofold  character.  They  are  endowed  with 
certain  functions  and  possess  powers  and  capacities  which  are 
granted  to  them  for  the  benefit  of  their  own  citizens,  and  which 
are  distinct  from  those  which  they  possess  as  agencies  of  the 
state  government.  These  powers  and  capacities  are  commonly 
called  private,  in  order  to  distinguish  them  from  the  public  pow- 
ers in  which  the  state  is  more  directly  concerned.  As  regards 
such  private  powers  and  capacities,  municipal  corporations  are 
substantially  on  the  same  footing  as  private  corporations.18  Thus, 
when  a  municipal  corporation  supplies  its  inhabitants  with  gas 
or  water,  it  is  generally  held  to  do  so  in  its  private  corporate 
capacity,  and  not  in  the  exercise  of  a  power  of  local  sovereignty.19 
As  said  by  the  supreme  court  of  Pennsylvania  in  a  recent  case : 20 
"If  this  power  is  granted  to  a  borough  or  city,  it  is  a  special 
private  franchise,  made  as  well  for  the  private  emolument  and 
advantage  of  the  city  as  for  the  public  good.  In  separating  the 
two  powers  *  *  *  public  and  private,  regard  must  be  had 
to  the  object  of  the  legislature  in  granting  them.  If  granted 
for  public  purposes  exclusively,  they  belong  to  the  corporate  body 
in  its  public,  political  or  municipal  character;  but  if  the  grant 


It  admits  of  no  doubt  that  the  590,  per  Field,  Ch.  J. ;  Cooley, 
legislature  may  change,  modify,  en-  Const.  Lim.  (7th  ed.)  342. 
large  or  restrain  the  powers  of  a  is  Illinois  Trust  &  Sav.  Bank  v. 
corporation  which  it  has  created.  Arkansas  City,  76  Fed.  271,  34  L. 
But  whenever  this  is  done,  and  a  R.  A.  518;  Safety  I.  Wire  Co.  v. 
municipal  corporation  is  relieved  Baltimore,  66  Fed.  140;  Girard 
of  the  privilege  and  duty  of  main-  Life  Ins.  Co.  v.  Philadelphia,  88  Pa. 
taining  a  jurisdiction  over  the  393,  followed  in  Commonwealth  v. 
property  and  property  rights,  care  Philadelphia,  132  Pa.  St.  288 ;  Wag- 
has  invariably  been  taken  to  re-  ner  v.  Rock  Island,  146  111.  139,  21 
store  to  the  original  owner  or  pro-  L.  R.  A.  519 ;  Board  of  Commis- 
prietor  the  rights  which  the  mu-  sioners  v.  Detroit,  28  Mich.  228,  15 
nicipal  corporation  were  for  a  Am.  Rep.  202 ;  Philadelphia  v.  Fox, 
time  permitted  to  exercise.  Ter-  64  Pa.  St.  180;  People  v.  Hurlbut, 
rett  v.  Taylor,  9  Cranch,  52 ;  2  24  Mich.  44,  9  Am.  Rep.  103. 
Kent,  Com.  257."  "The  private  19  But  see  Fire  Ins.  Co.  v.  Keese- 
property  of  a  municipal  corpora-  ville,  148  N.  Y.  46. 
tion  is  protected  by  the  constitution  20  Brumm's  Appeal  (Pa.  St.),  12 
of  the  United  States  in  the  same  Atl.  855.  See,  also,  Wagner  v. 
manner  and  to  the  same  extent  as  Rock  Island,  146  111.  139,  21  L.  R. 
the  property  of  an  individual."  A.  519. 
Grogan  v.  San  Francisco,  18  Cal. 


262  PUBLIC   CORPORATIONS.  r[§  256 

was  for  the  purpose  of  private  advantage  and  emolument,  though 
the  public  may  derive  a  common  benefit  therefrom,  the  corpora- 
tion quo  ad  hoc  is  to  be  regarded  as  a  private  company.  It 
stands  upon  the  same  footing  as  would  any  individual  or  body 
of  persons  upon  whom  the  like  special  franchises  had  been  con- 
ferred. ' ' 

Yet  the  legislature  may,  because  of  its  power  to  make  changes 
in  the  municipal  organization,  change  the  agencies  which  admin- 
ister property  of  this  class.21 

§  256.  Roads  and  streets. — The  legislature  as  the  represen- 
tative of  the  whole  people  may  regulate  the  use  of  streets,  high- 
ways and  other  such  public  places.  The  municipality  has  no 
property  interest  of  a  private  nature  in  the  streets  even  where  it 
holds  the  title  in  fee.  The  title  is  held  by  the  corporation  as  an 
agency  of  the  public,  and  "is  as  directly  under  the  power  and 
control  of  the  legislature  for  any  public  purpose  as  any  prop- 
erty held  by  the  state  or  any  public  body  or  officers,  and  its  ap- 
plication cannot  be  challenged  by  a  corporation  which  in  respect 
to  such  property,  at  least,  is  a  mere  agent  of  the  sovereign  power 
of  the  people. ' ' 22  Hence,  the  legislature  may  transfer  the  con- 
trol of  the  streets  of  a  city  to  park  commissioners,  to  be  by  them 
controlled  as  boulevards.23 

§  257.  Rights  in  the  nature  of  franchises. — Public  wharves 
and  ferries  are  property  in  the  nature  of  highways,  dedicated  to 
the  use  of  the  general  public.  Under  modern  views,  if  a  city 
is  authorized  by  a  state  legislature  to  establish  a  wharf  or  a  ferry, 
it  does  so  as  a  mere  instrument  of  state  government,  for  the  bene- 
fit of  the  public  at  large.  The  power  is  not  a  franchise  and  may 
be  revoked.24 

21  Mayor  of  Baltimore  v.  State,     Roads  and  Streets,  §  656. 

15  Md.  376,  74  Am.  Dec.  572;  Webb  23  People  v.   Walsh.  96  111.   232, 

v.  Mayor,  64  How.  Pr.  10.  36  Am.  Rep.  135 ;  Simon  v.  North- 

22  People  v.  Kerr,  27  N.  Y.  188 ;  rup,  27  Oreg.  487,  30  L.  R.  A.  171. 
Duval  County  Com.  v.  Jacksonville,  24  E.      Hartford      v.      Hartford 
29  L.  R.  A.  416;  State  v.  Jackson-  Bridge  Co.,  10  How.    (U.  S.)   511, 
ville  S.  R.  Co.,  29  Fla.  590 ;  Port-  s.  c.  16  Conn.  149 ;  Trustees  v.  Tat- 
land,  etc.  Ry.  Co.  v.  Portland,  14  man,  13  111.  28.     New  Orleans  M. 
Oreg.    188,    12    Pac.   265;    Council  &  T.   Co.   v.   Ellerman,  105  U.   S. 
Bluffs   v.   K.   C.,   etc.    Ry.   Co.   45  166.     In  this  case  the  court  said: 
Iowa,   358;   Chicago,   etc.   Ry.   Co.  "Whatever   powers   the   municipal 
v.   Dunbar,   100   111.   110;    Elliott,  body    rightfully    enjoys    over    the 


§  258]  LEGISLATIVE   CONTROL.  263 

But  the  right  may  have  been  acquired  under  a  colonial  char- 
ter, at  a  time  when,  even  as  respects  a  municipal  corporation,  it 
was  considered  a  contractual  grant.  It  has  been  held  that,  not- 
withstanding the  establishment  of  a  state  government,  such  a 
right  retains  its  original  nature  as  a  private  franchise.  But  this 
is  not  clear.  The  property  acquired  thereunder,  however,  would 
be  private  as  against  the  state.25 

§258.  Disposition  of  property  upon  dissolution. — The 
power  to  amend  or  repeal  the  charter  of  a  public  corporation 
cannot  be  used  to  take  away  property  rights,  which  have  been 
acquired  under  the  operation  of  a  charter.26  But  this  does  not 
mean  that  the  mere  presence  of  property  rights  will  prevent  a 
repeal;  but  merely  that  upon  dissolution  the  property  must 
be  administered  with  respect  to  the  rights  of  those  for  whose  bene- 
fit it  has  been  acquired,  or  who  have  obtained  an  equitable  right 
in  it.  If  the  corporation  is  holding  property  upon  a  public  trust, 
and  the  effect  of  the  alteration  in  its  powers,  or  of  the  dissolution, 
is  to  leave  the  trust  without  a  trustee,  a  court  of  equity  will  ap- 
point a  new  trustee.27  Upon  dissolution,  so  much  of  the  assets 
as  are  not  public  become  subject  to  a  charge  for  the  benefit  of 
the  creditors.  The  private  property  of  a  public  corporation  is  in 


subject  are  derived  from  the  legis-  Whorter,  17  Va.  214.  See  New  Or- 
lature.  They  are  merely  adminis-  leans,  etc.  Co.  v.  Ellerman,  supra. 
trative  and  may  be  revoked  at  any  26  The  Sinking  Fund  Cases,  99 
time,  not  touching,  of  course,  any  TL  S.  700;  Detroit  v.  Howell  Plank 
property  of  the  city  actually  ac-  Road  Co.,  43  Mich.  140. 
quired  in  the  course  of  administra-  27  Girard  v.  Philadelphia,  7  Wall, 
tion.  The  sole  ground  of  the  right  (U.  S.)  1;  Vidal  v.  Girard,  2  How. 
of  the  city  to  collect  wharfage  at  (U.  S.)  127;  Montpelier  v.  E.  Mont- 
all  is  that  it  is  a  reasonable  com-  pelier,  27  Vt.  704,  29  Vt.  12.  As 
pensation  which  it  is  allowed  by  to  the  power  to  take  and  hold  prop- 
law  to  charge  for  the  actual  use  of  erty  in  trust,  see  Smith  v.  Wes- 
the  structures  provided  at  its  ex-  cott,  17  R.  I.  366,  22  Atl.  280,  13 
pense  for  the  convenience  of  ves-  L.  R.  A.  217,  and  cases  cited  in 
sels  engaged  in  the  navigation  of  note.  The  legislature  may  place 
the  river."  Cannon  v.  New  Or-  the  administration  of  trusts  vested 
leans,  20  Wall.  (U.  S,)  577.  in  the  city  in  the  hands  of  a  board 
25  Benson  v.  Mayor,  10  Barb.  (N.  of  trustees.  Philadelphia  v.  Fox, 
Y.)  223.  Compare,  Rober  v.  Me-  64  Pa.  St.  169. 


264  PUBLIC   CORPORATIONS.  [§259 

like  manner  stamped  with  a  trust  for  the  payment  of  its  debts,28 
and  cannot  be  diverted  to  other  uses  by  the  legislature.29 


I.    POWER  OVER  OFFICES  AND  OFFICERS. 

§  259.  Various  kinds  of  officers.— The  question  of  the  legis- 
lative power  to  provide  for  the  appointment  of  local  officers  by  a 
state  authority  or  other  external  agency  is  determined  by  the  dis- 
tinction between  state  and  municipal  functions.  This  distinction 
rests  not  upon  the  name  or  locality  of  the  office,  but  upon  the  na- 
ture of  the  duties  to  be  performed.  If  the  duties  of  the  office 
concern  the  state  at  large  or  the  general  public,  although  ex- 
ercised within  defined  territorial  limits,  it  is  a  state  office,  and 
under  the  absolute  control  of  the  legislature.  But  if  such  duties 
relate  exclusively  to  the  local  concerns  of  a  particular  munici- 
pality, the  office  is  strictly  municipal,  and  any  attempt  on  the 
part  of  the  legislature  to  take  from  the  corporation  the  power  to 
elect  or  appoint  such  officer  is  an  interference  with  the  right  of 
local  self-government,  under  the  Michigan  rule,30  and  may  be 
considered  an  interference  with  the  rights  of  property  of  the 
municipality  where  that  rule  does  not  obtain.31  The  authorities 
are  not  in  harmony,  however,  as  will  appear  in  the  following 
sections. 

§  260.  Police  officials. — The  various  kinds  and  grades  of  po- 
lice officials,  although  ordinarily  performing  their  duties  and 


28  "if   a   municipal   corporation,  38  Kan.  578 ;  People  v.  Draper,  15 
upon   the  surrender  or  extinction  N.    Y.    532;    Attorney    General    v. 
in  other  ways  of  its  charter,  is  Common   Council   of   Detroit,   112 
possessed  of  any  property,  a  court  Mich.  145,  70  N.  W.  450.     A  mem- 
of  equity  will  take  possession  of  it  ber  of  a  city  council  is  not  an  offi- 
for  the  benefit  of  the  creditors  of  cer  of  the  ward  from  which  he  is 
the    corporation."      Broughton    v.  chosen.    He  is  a  city  officer.   State 
Pensacola,    93    TJ.    S.    266;    Mere-  v.  Craig,  132  Ind.  54,  16  L.  R.  A. 
wether  v.  Garrett,  102  U.  S.  472.  688. 

29  Hare,  Am.  Const.  Law,  p.  636,        si  state  v.   Barker,   116  la.  96, 
and  cases  cited.  89  N.  W.  204 ;  Proprietors  of  Mount 

so  People  v.  Hurlbut,  24  Mich.  44,  Hope    Cemetery    v.     Boston,    158 

9  Am.  Rep.  103;  State  ex  rel  Holt  Mass.    509.      But    see    Brown    v. 

v.  Denny,  118  Ind.  449,  21  N.  E.  Galveston,  97  Texas,  1,  75  S.  W. 

274,  4  L.  R.  A.  65 ;  State  v.  Hunter,  488. 


§261] 


LEGISLATIVE   CONTROL. 


265 


exercising  their  powers  within  the  limits  of  a  single  municipality, 
are  state  and  not  municipal  officers.32 

§261.  Their  appointment  and  payment. — The  legislature 
may  provide  a  permanent  police  for  a  municipal  corporation,  and. 
place  it  under  control  of  a  board  composed  of  members  appointed 
by  the  legislature  or  some  other  state  authority,  and  require  the 
transfer  to  such  board  of  all  station-houses  belonging  to  the  cor- 
poration.33 As  said  by  Chief  Justice  Elliott,34  "The  power  of 
the  legislature  to  provide  for  the  appointment  of  the  members  of 
a  municipal  board  of  police  has  been  affirmed  in  every  instance 
in  which  it  has  been  so  challenged  and  presented  as  to  require 
the  judgment  of  courts.  Those  courts  which  hold  to  the  doctrine 
that  the  control  of  matters  of  purely  local  concern  cannot  be 
taken  from  the  people  of  the  locality  place  their  decisions  upon 


32  Commonwealth  v.  Plaisted, 
148  Mass.  375 ;  Newport  v.  Horton, 
22  R.  I.  196,  47  Atl.  312 ;  Rusher  v. 
Dallas,  83  Tex.  151;  Culver  v. 
Streator,  130  111.  238,  22  N.  E.  810 ; 
Perkins  v.  New  Haven,  53  Conn. 
214,  1  Atl.  845;  Norristown  v. 
Fitzpatrick,  94  Pa.  St.  121;  Burch 
v.  Hardwicke,  30  Grat.  (Va.)  24; 
State  v.  Seavey,  22  Nev.  454 ;  State 
v.  Hunter,  38  Kan.  578.  In  this 
case  the  court  said :  "In  effect,  it 
is  said  to  be  opposed  to  the  funda- 
mental theory  of  self-government, 
and  denies  to  the  people  of  the 
district  the  right  to  select  their 
own  officers  from  among  their  own 
number.  Whatever  may  be  said 
regarding  the  policy  of  placing  the 
police  administration  of  cities  in 
a  board  of  police  commissioners 
who  are  chosen  by  state  officers 
rather  than  through  the  electors 
of  the  cities,  there  can  be  no  doubt 
that  the  legislature  has  the  power 
to  do  so."  State  v.  Seavey,  22  Neb. 
455,  467,  35  N.  W.  228.  "As  a  po- 
litical society  the  state  has  an 
interest  in  the  suppression  of  dis- 
order and  the  maintenance  of  peace 


and  security  in  every  locality 
within  its  limits."  Denio,  J.,  in 
People  v.  Draper,  15  N.  Y.  544; 
People  v.  Mayor,  15  Md.  376.  In 
Shad  v.  Crawford,  3  Mete.  (Ky.) 
207,  and  People  v.  Albertson,  55 
N.  Y.  50,  they  were  held  to  be  local 
officers.  The  members  of  a  board 
of  health  are  state  officers.  Da- 
vock  v.  Moore,  105  Mich.  120,  63 
N.  W.  424,  28  L.  R.  A.  783 ;  Taylor 
v.  Philadelphia  Board  of  Health, 
31  Pa.  St.  73,  72  Am.  Dec.  724. 
Jury  commissioners  are  state  offi- 
cers. Speed  v.  Detroit,  100  Mich. 
92,  58  N.  W.  638. 

83  Baltimore  v.  State,  15  Md.  376 ; 
People  v.  Mahaney,  13  Mich.  481; 
State  v.  Covington,  29  Ohio  St.  102 ; 
State  v.  Seavey,  22  Neb.  454,  35  N. 
W.  228;  State  v.  Hunter,  38  Kan. 
578;  State  ex  rel  Holt  v.  Denny, 
118  Ind.  449,  21  N.  E.  274,  4  L.  H. 
A.  65;  State  ex  rel  Jameson  v. 
Denny,  118  Ind.  382,  21  N.  E.  252,  4 
L.  R.  A.  79.  But  see  Evansville  v. 
State,  118  Ind.  426,  21  N.  E.  267, 
4  L.  R.  A.  93. 

34  State  v.  Kolsem,  130  Ind.  434, 
29  N.  E.  595,  14  L.  R.  A.  566. 


266  PUBLIC   CORPORATIONS.  [§  262 

the  ground  that  the  selection  of  purely  peace  officers  is  not  a  local 
matter,  but  is  one  of  state  concern,  inasmuch  as  such  officers  be- 
long to  the  constabulary  of  the  state.  But  while  the  reasoning  of 
the  courts  is  diverse,  the  ultimate  conclusion  reached  by  all  the 
cases  is  the  same."  The  maintenance  of  a  police  department  is 
commonly  left  to  municipal  authority,  but  the  legislature  may  es- 
tablish a  municipal  board  of  police,  with  power  to  estimate  the 
expense  of  such  department  and  compel  the  municipality  to  pro- 
vide by  taxation  for  the  payment  of  the  amount  so  required.35 

§262.  Park  commissioners. — The  legislature  may  create  a 
board  of  park  commissioners,  with  members  to  be  elected  by  the 
people  of  the  municipality,  and  confer  on  it  authority  to  pur- 
chase a  public  park.  But  such  commissioners  are  primarily 
municipal  officers,  exercising  powers  of  a  nature  purely  munici- 
pal. Under  the  Michigan  rule,  as  decided  in  a  leading  case,  a 
statute  created  a  board  and  named  the  members  and  authorized 
it  to  select  the  land  for  a  park  and  to  make  contracts  therefor, 
subject  to  ratification  by  the  city  council  and  a  vote  of  the 
people.  Before  the  acts  of  the  board  were  ratified  the  statute  was 
amended,  and  the  board  authorized  to  "acquire  by  purchase" 
the  necessary  lands,  and  to  require  the  council  to  provide  the 
necessary  money.  It  was  held  that  the  council  could  not  be  com- 
pelled to  raise  the  money  for  such  a  local  purpose,  and  that  the 
fact  that  the  council  recognized  the  board  as  a  municipal  agent 
before  the  amendment  did  not  make  it  the  representative  of  the 
city  with  reference  to  powers  conferred  by  the  amendment.36 

But  according  to  many  authorities  parks  may  be  constructed 
by  the  state  within  a  locality  for  the  benefit  of  the  public  at  large, 
the  expense  be  defrayed  by  local  taxation,  and  the  management 
be  vested  in  a  board  of  state-appointed  officers ; 37  and  obviously 


35  People  v.  Mahaney,  13  Mich.  328,   15  Am.   Rep.  202;   Attorney- 

481 ;  Burch  v.  Hardwicke,  30  Grat.  General  v.  Lathrop,  24  Mich.  235 ; 

(Va.)   24;  Police  Com'rs  v.  Louis-  Park  Com.  v.  Mayor,  29  Mich.  347, 

ville,  3  Bush   (Ky.),  597;  State  v.  contra  Hartford  v.  Haslen,  76  Conn. 

Leovy,  21  La.  Ann.  538.     In  Peo-  599.     See  St.  Louis  Co.  v.  Grisold, 

pie  v.  Albertson,  55  N.  Y.  50,  the  58  Mo.  175 ;  Astor  v.  Mayor,  66  N. 

case  of  People  v.  Draper,  15  N.  Y.  Y.  567. 

532,  is  distinguished,  and  People  v.         ^  Brodbine  v.  Revere,  182  Mass. 

Shepard,  36  N.  Y.  285,  doubted.  598,  66  N.  E.  607 ;  Hartford  v.  Has- 

ae  People    v.    Detroit,    28    Mich,  len,  76  Conn.  599. 


§  263]  LEGISLATIVE    CONTROL.  267 

parks  established  by  dedication  to  the  general  public  are  within 
the  control  of  the  state.38 

§  263.  Other  public  works. — The  courts  of  Michigan  and 
Indiana  have  held  that  the  legislature  cannot  provide  for  the 
external  appointment  of  local  officers  who  have  the  care  of  streets, 
roads  and  bridges.39  But  these  authorities  seem  out  of  harmony 
with  the  rule  that  highways  are  established  for  the  benefit  of  the 
public  at  large. 

Under  a  constitutional  provision  which  authorizes  the  legis- 
lature to  confer  upon  cities  and  villages  such  powers  of  local 
legislative  and  administrative  character  as  it  shall  deem  proper, 
and  provides  that  "judicial  officers  of  cities  and  villages  shall  be 
elected,  and  all  other  officers  shall  be  elected  or  appointed  at  such 
times  and  in  such  manner  as  the  legislature  may  direct,"  the 
legislature  may  appoint  officers  not  municipal,  such  as  police 
commissioners;  but  according  to  the  Michigan  rule  it  cannot 
appoint  officers  whose  duties  are  exclusively  local,  such  as  the 
members  of  a  board  of  water  commissioners  for  a  particular 
city.40 

§  264.  The  mayor. — The  chief  executive  officer  of  a  city  has 
been  held  to  be  a  municipal  and  not  a  state  officer.41  But  in  a 
recent  well-considered  case,42  it  was  held  that  the  mayor  was  a 
state  officer,  within  the  meaning  of  a  constitutional  provision  to 
the  effect  that  no  person  holding  an  office  under  the  state  shall 
at  the  same  time  hold  the  office  of  governor.  The  court  said: 

s  8 /n  re  Land  in  Laurence,  119  to    make,    supervise    or    interfere 

Fed.  453.  with  any  municipal  improvement, 

3»  State  ex  rel  Jameson  v.  Denny,  money,  property  or  effects,  or  per- 
118  Ind.  382,  21  N.  E.  252,  4  L.  R.  form  any  municipal  functions 
A.  79;  State  v.  Smith,  44  Ohio  St.  whatever,"  does  not  prevent  the 
348 ;  Wayne  Co.  Road  Cornmrs.  v.  legislature  creating  a  board  of  pub- 
Auditors,  148  Mich.  255.  Contra,  lie  works  for  the  city  of  Denver 
Daley  v.  St.  Paul,  7  Minn.  390.  charged  with  the  making  of  public 

40  People   v.    Hurlbut,    24    Mich,  improvements,   composed  of  mem- 

44,  9  Am.  Rep.  103.    Contra,  David  bers  appointed  by  the  governor  by 

v.  Portland  Water  Committee,  14  and  with  the  advice  and  consent  of 

Or.  98,  12  Pac.  174.    The  constitu-  the  senate.     In  re  Senate  Bill,  12 

tion  of  Colorado,  article  5,  section  Colo.  188. 

25,  which  provides  that  the  legis-  *i  Britton  v.  Steber,  62  Mo.  370. 

lature  "shall  not  delegate  to  any  <2  Attorney   General  v.  Common 

special    commission,    private    cor-  Council  of  Detroit,  112  Mich.  145, 

po ration  or  association,  any  power  70  N.  W.  450. 


268  PUBLIC   CORPORATIONS.  [§  265 

"Many  cases  have  arisen  upon  similar  provisions  of  the  various 
constitutions,  and  while  the  decisions  are  not  altogether  uniform, 
we  shall  find  them  in  substantial  harmony  upon  two  propositions, 
viz. :  First,  that  an  officer  of  a  city,  whose  duties  are  purely  and 
simply  municipal,  and  who  has  no  functions  pertaining  to  state 
affairs,  does  not  come  within  the  constitutional  description  of 
officers  holding  office  under  the  state.  And  second,  where  officers 
in  cities  are  appointed  or  elected  by  the  community  in  obedience 
to  laws  which  impose  duties  upon  them  in  relation  to  state  affairs, 
as  contradistinguished  from  affairs  of  interest  to  the  city  merely, 
such  as  relate  to  gas-works,  sewers,  water- works,  lighting,  etc., 
they  are  upon  a  different  footing,  and  may  properly  be  said  to 
hold  office  under  the  state." 

II.    FUNDS  AND  REVENUES. 

§265.    Power  over  revenue   of   public    corporations. — The 

legislature  has  full  power  of  disposition  over  such  funds  and 
revenues  of  a  city,  county,  township,  or  other  public  corporation, 
as  are  derived  from  the  exercise  of  the  taxing  power  or  the  police 
power  of  government ; 43  provided  they  have  not  been  appropri- 
ated under  legal  authority  to  some  corporate  purpose  which  is 
private  as  against  the  state,  and  provided  that,  if  raised  by  local 
taxation,  the  purpose  to  which  the  legislature  seeks  to  devote 
them  is  one  for  which  a  local  tax  might  originally  have  been 
laid.44 

The  funds  and  revenues  of  a  county  raised  by  taxation  are  not 
its  property  in  the  sense  in  which  private  property  belongs  to  an 
individual.  They  are  the  result  of  the  use  of  a  power  delegated 

43  Davock   v.   Moore,   105   Mich.  Misappropriation   of  funds — Ac- 

120,  63  N.  W.  424,  28  L.  R.  A.  783 ;  tion— When  the  funds  of  the  coun- 

County  v.  People,  11  111.  202 ;  Coun-  ty  or  city  are  misappropriated,  an 

ty  of  Richland  v.  County  of  Law-  action  to  recover  the  same  must  be 

rence,  12  111.  1 ;  Trustees  v.  Tatam,  brought  in  the  name  of  the  munici- 

13  111.  28;  Dennis  v.  Maynard,  15  pality.     People  v.  Ingersoll,  58  N. 

111.  477;   People  v.  Power,  25  111.  Y.  1;   People  v.  Fields,  58  N.  Y. 

169 ;  Love  v.  Schenck,  12  Ired.  (N.  491 ;  Love  v.  Schenck,  12  Ired.  (N. 

C.)   304;  Youngs  v.  Hall,  9  Nev.  C.)    304;   Dennis  v.  Maynard,  15 

212 ;    Indianapolis   v.   Indianapolis  111.  477 ;  Spaulding  v.  Andover,  54 

Home,  etc.,  50  Ind.  215 ;  Duval  Co.  N.  H.  38.     See  Trustees  of  Aber- 

Com.  v.  Jacksonville,  (Fla.),  29  L.  deen  Academy  v.  Aberdeen,  13  S. 

R.    A.    416,    18    So.    339;    Creigh-  &  M.  (Miss.)  645. 

ton  v.  San  Francisco,  42  Cal.  446.  «  State  v.  Haben,  22  Wis.  629. 


§  266]  LEGISLATIVE  CONTROL.  269 

by  the  state  to  be  exercised  for  the  public  good,  and  the  public 
interest  requires  that  the  legislature  shall  have  power  to  direct 
and  control  their  application.45  Hence,  until  actually  appropri- 
ated, the  public  funds  are  subject  to  the  control  of  the  legislature. 
Thus,  no  vested  rights  are  acquired  in  a  fund  set  apart  for  the 
relief  of  disabled  officers.  "The  direction  of  the  state/'  said  Mr. 
Justice  Field,46  "that  the  fund  should  be  for  the  benefit  of  the 
police  officer  or  his  representatives,  under  certain  conditions,  was 
subject  to  change  or  revocation  at  any  time  at  the  will  of  the 
legislature.  There  was  no  contract  on  the  part  of  the  state  that 
its  disposition  should  always  continue  as  originally  provided. 
Until  the  particular  event  should  happen  upon  which  the  money 
or  a  part  of  it  was  to  be  paid,  there  was  no  vested  right  in  the 
officer  to  such  payment. ' ' 

Where  the  constitution  of  the  state  prohibited  the  legislature 
from  authorizing  counties  to  levy  taxes  for  any  other  than  county 
purposes,  it  was  held  that  the  legislature  might  nevertheless 
require  the  county  to  turn  over  a  certain  portion  of  a  tax  levied 
for  county  purposes  to  a  municipality  to  be  used  in  repairing  the 
streets  of  a  city.47 

§266.  From  rights  in  the  nature  of  franchises. — Neither 
public  corporations  nor  their  officers  or  agents 4S  can  acquire 
vested  rights  in  the  powers  which  are  conferred  upon  them.  "It 
is  an  unsound  and  even  absurd  proposition  that  political  power 
conferred  by  the  legislature  can  become  a  vested  right  as  against 
the  government  in  any  individual  or  body  of  men.49  Such  power 
exists  subject  to  the  will  of  the  legislature,  and  in  the  absence 
of  a  constitutional  limitation  may  be  repealed  or  withdrawn 
either  by  general  law  or  special  statute.50  Thus,  the  legislature 
may  repeal  a  grant  of  power  to  levy  and  collect  wharfage,  al- 
though the  income  of  the  wharf  has  been  pledged  by  the  corpora- 
tion along  with  other  revenues  for  the  payment  of  bonds  issued 


«  Board  v.  City  of   Springfield,  *s  People  v.  Hurlbut,  24  Mich.  44. 

63  111.  66;  Police  Commrs.  v.   St.  « People    v.    Morris,    13    Wend. 

Louis  Co.  Ct,  34  Mo.  546.  335,  Nelson,  J. 

*«  Pennie  v.  Reis,  132  TJ.  S.  464.  so  Sloan  v.  State,  8  Blackf.  (Ind.) 

47  Duval    Co.    Com.    v.    Jackson-  361 ;  State  v.  Kolsen,  130  Ind.  434, 

vllle,  (Fla.),  18  So.  339,  29  L.  R.  A.  14  L.  R.  A.  566. 

416;  Skinner  v.  Henderson,  26  Fla. 

121,  8  L.  R.  A.  55. 


270  PUBLIC   CORPORATIONS.  [§  267 

in  order  to  obtain  money  to  maintain  and  improve  the  wharf.51 
So,  it  may  repeal  a  statute  which  gives  to  a  city  the  right  to  license 
the  sale  of  intoxicating  liquors,  and  provides  that  the  money  re- 
ceived from  such  licenses  shall  be  appropriated  to  the  support  of 
paupers  within  the  city.52  "Such  authority,"  said  Caton,  J.,53 
"gives  the  city  no  more  a  vested  right  to  issue  licenses  because 
the  legislature  specified  the  object  to  which  the  money  should  be 
applied,  than  if  it  had  been  put  into  the  general  fund  of  the 
city." 

III.    LEGISLATIVE  CONTROL  OVER  CONTRACTS. 

§267.    Rights  of  parties  contracting  with  corporation. — In 

the  exercise  of  the  general  power  of  control  over  the  corporation, 
the  legislature  must  not  impair  any  of  the  constitutional  rights  of 
third  persons  who  have  become  creditors  of  the  corporation. 
The  corporation  itself  may  not  acquire  rights  as  against  its  cre- 
ator in  many  cases ;  but  its  transactions  may  give  rise  to  contracts 
in  which  its  creditors  are  protected  by  the  constitutional  provi- 
sion against  a  state's  impairing  the  obligation  of  a  contract.54 

§  268.  Illustrations. — Where  a  public  corporation  has  been 
given  authority  to  incur  indebtedness,  and  to  levy  a  tax  for  the 
purpose  of  providing  the  means  to  pay  the  debt,  parties  who 
become  creditors  of  the  corporation  upon  the  faith  of  this  taxing 
power  are  presumed  to  have  contracted  with  reference  to  the 
means  of  payment  thus  provided,  and  the  legislature  cannot 
destroy  their  remedy  by  depriving  the  municipality  of  the  right 
to  levy  the  tax.  The  power  of  taxation  as  it  existed  at  the  date 
of  the  contract  is  read  into  the  contract  and  becomes  a  part  of  the 

si  St.  Louis  v.  Shields,  52  Mo.  U.  S.  654 ;  Wolff  v.  New  Orleans, 

351.  Distinguishing  Van  Hoffman  103  U.  S.  358 ;  Williams'  Appeal,  72 

v.  Quincy,  4  Wall.  535.  Observe  Pa.  St.  215;  Memphis  v.  United 

that  in  St.  Louis  v.  Shields,  the  States,  97  U.  S.  293 ;  Van  Hoffman 

question  was  only  as  to  the  right  v.  Quincy,  4  Wall.  536;  Morris  v. 

of  the  city  to  resist;  the  rights  of  State,  62  Tex.  728;  Brooklyn  Park 

the  bondholders  were  not  before  Commissioners  v.  Armstrong,  43 

the  court.  N.  Y.  234 ;  Mt.  Pleasant  v.  Beck- 

52  Gutzweller  v.  People,  14  111.  with,  100  U.  S.  514 ;  Merriweather 

142;  People  v.  Morris,  supra.  v.  Garrett,  102  U.  S.  472;  Lansing 

63  See  Richmond  Co.  v.  Lawrence  v.  County  Treasurer,  1  Dill.  C.  C. 

Co.,  12  111.  1 ;  Sangamon  v.  Spring-  522 ;  People  v.  Bond,  10  Cal.  563 ; 

field,  63  111.  66.  Smith  v.  Appleton,  19  Wis.  468. 

s*  Shapleigh  v.  San  Angelo,  167 


§  269]  LEGISLATIVE   CONTROL.  271 

obligation.35  The  rights  of  creditors  can  no  more  be  impaired  by 
amendment  of  a  state  constitution  than  by  the  repeal  of  the 
statute  authorizing  the  levying  of  the  tax.56  Subsequent  changes 
which  substantially  modify  the  manner  of  levying  the  tax,  so  as 
to  affect  rights  under  the  contract,  violate  the  rule  against  the 
impairment  of  contracts.57  But  an  alteration  in  the  manner  of 
levying  such  tax,  which  does  not  substantially  affect  the  security 
of  the  creditor,  is  valid.58  So,  exempting  certain  property  from 
the  operation  of  the  tax  is  not  objectionable,  when  not  carried 
to  such  an  extent  as  to  affect  the  substantial  rights  of  the  credit- 


ors.59 

§  269.  Rights  in  a  sinking  fund. — The  creditors  of  a  public 
corporation  may  acquire  contract  rights  in  a  fund  which  is  raised 
for  the  payment  of  their  debt,  and  upon  the  faith  of  which  they 
have  acted.  Thus,  where  certain  creditors  surrendered  their 
claims  against  the  city,  and  accepted  new  obligations  upon  a 
pledge  that  certain  revenues  and  property  should  be  applied  to 
the  payment  of  such  new  obligations  in  a  specific  manner,  the 
security  thus  provided  for  cannot  be  diverted  to  other  purposes 
by  either  the  municipality  or  the  legislature.  The  provision  for 
payment  thus  made  becomes  a  part  of  the  contract,  and  cannot 
be  materially  altered  without  the  consent  of  such  creditors.60  So, 
where  an  act  of  a  legislature  provides  for  the  creation  of  a  sinking 
fund,  which  is  to  be  deposited  and  applied  in  a  certain  manner, 
and  creditors  acting  on  the  faith  of  such  provision  for  the  pay- 
ment of  their  debts  surrender  their  obligations  and  receive  new 


ss  Nelson  v.  St.  Martin's  Parish,  58  People  v.  Bond,  10  Cal.  563. 

Ill  TJ.   S.  716 ;  Wolff  v.  New  Or-  59  Oilman  v.  Sheboygan,  2  Black, 

leans,  103  U.  S.  358;  Louisiana  v.  510;    Seibert  v.   Lewis,  122  U.   S. 

Pilsbury,  105  U.  S.  278;  Rails  Co.  284.     The  rights  of  a   contractor, 

Court  v.  United  States,  105  TJ.  S.  who  has  agreed  to  take  his  com- 

733;  Mobile  v.  Watson,  116  U.  S.  pensation    in    assessments,    cannot 

289 ;  Von  Hoffman  v.  City  of  Quin-  be  destroyed  by  a  subsequent  stat- 

cy,  4  Wall.  535 ;  Oilman  v.  Sheboy-  ute  restricting  the  power  of  assess- 

gan,  2  Black,  510;  Goodale  v.  Fen-  ment.    Goodale  v.  Fennell,  27  Ohio 

nell,  27  Ohio  St.  426,  22  Am.  Rep.  St.  426,  22  Am.  Rep.  321. 

321 ;  Sfate  v.  New  Orleans,  37  La.  so  People  v.  Bond,  10  Cal.  563. 

Ann.  13.  As  to  the  nature  of  a  sinking  fund, 

5«  Sawyer  v.  Concordia,  12  Fed.  see  Kelly  v.  City  of  Minneapolis, 

Rep.  754.  63  Minn.  125,  30  L.  R.  A.  281,  65 

57  Seibert   v.    Lewis,   122   U.    S.  N.  W.  115. 
284. 


272  LEGISLATIVE  CONTROL.  [  §  270 

bonds  for  the  payment  of  which  the  fund  is  pledged,  the  legisla- 
ture cannot,  by  subsequent  act,  provide  for  a  different  depositary 
of  the'fund.61  It  may  be  stated  as  a  general  rule  that  such  pro- 
visions as  were  intended  to,  and  probably  did,  operate  as  an  in- 
ducement to  the  creditors  to  accept  the  new  security,  cannot  sub- 
sequently be  modified  to  the  prejudice  of  the  creditors. 

§270.  Limitation  on  indebtedness. — Where*  a  city  was  au- 
thorized to  issue  a  certain  amount  of  bonds  in  payment  for  an 
equal  amount  then  outstanding,  and  a  provision  of  the  act  pro- 
hibited the  city  from  thereafter  issuing  its  bonds  ' '  except  in  pay- 
ment of  its  bonded  debts,"  it  was  held  that,  after  the  creditors 
had  accepted  this  proposition,  the  prohibition  against  the  issue 
of  additional  bonds  became  a  contract  between  the  municipality 
and  the  bondholders,  which  was  impaired  by  subsequent  legisla- 
tion authorizing  the  issue  of  bonds  for  other  purposes.62 

§  271.  Power  to  deprive  a  municipality  of  contract  rights. 
— The  power  of  the  legislature  to  deprive  a  municipality  of  con- 
tractual rights  against  third  persons  is  determined  with  reference 
to  the  same  distinction  as  is  recognized  in  respect  to  property.  A 
legislature  has  absolute  control  of  an  obligation  in  favor  of  a 
public  corporation,  which  has  been  acquired  by  the  corporation 
as  an  agent  of  the  state;  for  example,  may  release  the  contract 
obligation  of  a  street-railway  company  to  repair  streets.63 

IV.     THE  POWER  TO  IMPOSE  OBLIGATIONS. 

§  272.  Nature  of  the  debt. — Where  a  debt  or  liability  would 
arise  out  of  the  performance  of  a  public  duty,  and  is  to  be  in- 
curred for  public  or  state  purposes,  the  legislature  may  impose 
the  same  upon  the  corporation  without  its  consent.  The  question 
can  seldom  arise  in  reference  to  public  corporations  other  than 
municipal,  and  the  power  is  frequently  restricted  by  constitu- 
tional provisions.  In  the  absence  of  such  provisions,  the  question 
whether  a  city  can  be  compelled  by  an  act  of  the  legislature  to 


eiThe  Liquidators  v.  Municipal-  Street  Ry.  Co.,  182  Mass.  41,  64 

ity,  6  La.  Ann.  21  .  N.  E.  577.  See  State  v.  Baltimore 

ez  Smith  v.  Appleton,  19  Wis.  &  Ohio  R.  Co.,  25  Md.  (12  G.  &  J.) 

468.  279. 

«s  Springfield       v.       Springfield 


1  §  273]  LEGISLATIVE   CONTROL.  273 

incur  a  debt  or  assume  a  liability  against  its  will  muse  be  deter- 
mined by  the  nature  of  the  purpose  for  which  such  liability  is  to 
be  incurred.64  A  city  may  be  compelled  to  pay  a  debt  even  in 
excess  of  a  statutory  limit  upon  indebtedness ; 65  but  otherwise 
when  the  limitation  is  imposed  by  the  constitution.66  The  legis- 
lature cannot,  however,  require  a  court  to  render  judgment  upon 
a  claim  against  a  corporation  upon  mere  proof  of  the  amount  of 
the  claim,  as  this  would  >e  3n  attempt  to  control  the  judicial 
power.67 

§273.  Compulsory  taxation. — The  state  saay  direct  and 
levy  compulsory  taxation  whenever  necessary  to  compel  a  public 
corporation  to  perform  its  duties  as  an  agency  of  the  state  go7- 
ernment,  or  to  fulfill  any  legal  or  equitable  obligation  resting 
upon  it  in  consequence  of  any  corporate  action.  The  people  ha\v 
no  absolute  right  to  be  heard  except  through  their  representative^ 
in  the  legislature  of  the  state.68 

§274.  Construction  of  highways. — The  control  of  p^ric 
highways,  bridges  and  canals  is  a  matter  of  general,  or  state,  as 
distinguished  from  municipal  concern,  and  the  legislature  may 
require  a  municipal  corporation  to  build  and  maintain  a  bridge 
over  a  stream  within  its  limits,69  or  to  expend  money  for  the  im- 

64  Simon  v.  Northup,  27  Oreg.  to  contribute  toward  the  erection 

487,  40  Pac.  560,  30  L.  R.  A.  171;  and  maintenance  of  a  bridge  sit- 

Lycoming  v.  Union,  15  Pa.  St.  166,  uated  in  another  county.  Carter 

53  Am.  Dec.  575.  v.  Bridge  Proprietors,  104  Mass. 

es  Mosher  v.  School  District,  44  236 ;  Commonwealth  v.  Newbury- 

lowa,  122.  port,  103  Mass.  129.  "The  general 

ee  Creighton  v.  San  Francisco,  42  rule  that  bridges  and  highways 

Cal.  446 ;  New  Orleans  v.  Clark,  shall  be  maintained  by  the  counties 

95  U.  S.  644.  and  towns  within  which  they  are 

67  Hoagland  v.  Sacramento,  52  situated  originated  in  the  legisla- 

Cal.  142.  ture,  and  the  power  that  established 

es  Cooley,  Taxation,  684,  1  An-  it  can  repeal  or  modify  it."  Chap- 

drews,  Am.  Law,  §  411 ;  Davock  v.  man,  C.  J.,  in  Carter  v.  Bridge 

Moore,  105  Mich.  120,  63  N.  W.  Proprietors,  supra.  The  legisla- 

424,  28  L.  R.  A.  783.  ture  may  charge  the  cost  of  an 

69  Simon  v.  Northup,  27  Oreg.  authorized  public  improvement  up- 
487,  40  Pac.  560,  30  L.  R.  A.  171 ;  on  the  particular  public  corpora- 
Philadelphia  v.  Field,  58  Pa.  St.  tion  chiefly  benefited.  Norwich  v. 
320;  Thomas  v.  Leland,  24  Wend.  Hampshire,  13  Pick.  (Mass.)  60; 
65 ;  Guilder  v.  Otsego,  20  Minn.  74 ;  H.,  etc.  v.  Norfolk  Co.,  6  Allen 
Pumphrey  v.  Baltimore,  47  Md.  (Mass.),  353. 

145.     A  county  may  be  compelled 

» 

18 


274  PUBLIC   CORPORATIONS.  [§  275 

provement  of  docks,  wharves  or  levees.70  So  a  county  or  town 
may  be  compelled  to  issue  bonds  for  the  purpose  of  raising  money 
to  be  expended  in  the  construction  and  maintenance  of  highways 
within  its  limits.71  In  some  states  this  duty  to  maintain  streets 
and  highways  may  be  enforced  by  mandamus  at  the  instance  of 
a  private  person,  without  showing  injury  or  interest.72 

§275.  Support  of  public  schools. — Where  the  state  has 
established  a  system  of  public  schools,  it  may  by  compulsory  tax- 
ation compel  the  proper  political  division  of  the  county  to  main- 
tain the  same.  Such  schools  concern  the  state  at  large,  and  the 
unrestricted  control  by  the  legislature  in  no  way  conflicts  with 
the  privilege  of  local  self-government.73  So,  it  is  competent  for 
the  legislature  to  provide  for  the  distribution  of  money  raised  by 
taxation  for  school  purposes  after  it  has  been  collected.74 

§  276.  Local  corporate  purpose. — As  the  power  to  impose  a 
debt  is  the  power  to  tax.  in  the  absence  of  special  constitutional 
provision  regarding  compulsory  local  taxation,  the  question 
whether  a  legislature  can  impose  a  debt  on  a  municipal  corpora- 
tion for  an  improvement  of  simply  local  interest  depends  on 
whether  a  right  to  self-government  in  such  matters  is  recognized, 
as  above  discussed.75 

§277.  Subscription  for  stock. — A  public  corporation  is 
deemed  to  act  in  a  matter  of  strictly  corporate  interest  when  it 
becomes  a  stockholder  in  a  railway  company;  and  a  mandatory 
statute  enacted  without  the  consent  of  the  inhabitants  of  the 
town,  requiring  the  corporation  to  become  a  shareholder  in  a 

TO  Eastern,  etc.  Ry.  Co.  v.  Cen-  74  School  District  v.  Weber,  75 

tral  Ry.  Co.,  52  N.  J.  L.  267,  31  Mo.   558;   State  Board  of  Educa- 

Am.  &  Eng.  Corp.  Cas.  262.  tion  v.  Aberdeen,  56  Miss.  518. 

71  People  v.  Flagg,  46  N.  Y.  401 ;  75  People    v.    Detroit,    28    Mich, 
Jensen  v.  Board  of  Supervisors,  47  228,  15  Am.  Rep.   202;   People  v. 
Wis.  298 ;  People  v.  Board  of  Su-  Chicago,  51  111.  17,  2  Am.  Rep.  278 ; 
pervisors,   50  Cal.   561.     May   im-  Cairo,  etc.  R.  Co.  v.  Sparta,  77  111. 
pose  a  tax  to  pay  for  the  construe-  505 ;  Marshall  v.  Silliinan,  61  111. 
tion  of  a  canal.    Thomas  v.  Leland,  225 ;  People  v.  Batchelor,  53  N.  Y. 
24  Wend.  65.  128,  13  Am.  Rep.   480;   People  v. 

72  Pumphrey  v.  Baltimore,  47  Md.  Harper,  91  111.  357 ;  Atkins  v.  Town 
145.  of  Randolph,  31  Vt.  226.    Compare 

73  State    v.    Haworth,    122    Tnd.  State  v.  Tappan,  29  Wis.  669. 
462,  23  N.  E.  946;   State  v.  Blue, 

122  Ind.  600,  23  N.  E.  963. 


§278] 


LEGISLATIVE   CONTROL. 


275 


private  corporation  by  exchanging  its  bonds  for  stock  upon  the 
terms  prescribed  by  the  statute,  is  invalid.76 

§278.  Compulsory  payment  of  claims. — The  legislature 
may  use  the  power  of  compulsory  taxation  to  compel  a  public 
corporation,  which  exists  and  exercises  authority  by  its  permis- 
sion, to  pay  a  debt  which  is  equitable  in  its  character  and  involves 
a  moral  obligation,  although  not  binding  in  strict  law,  and  not 
enforceable  in  law  or  equity.77  "The  sovereign  power  of  appro- 
priation of  the  public  funds  already  in  the  treasury,  or  to  be 
raised  by  taxation,  in  favor  of  individuals,  is  one,  the  exercise  of 
which  must  depend  largely  upon  the  legislative  conscience,  and, 
like  most  of  the  great  powers  of  government,  cannot  be  inter- 
fered with  by  us,  unless  in  exceptional  cases.  The  most  usual 
cases  in  which  this  power  has  been  exercised  are  those  like  the  one 
under  consideration  now,  where  an  individual,  having  no  legal 
claim  in  the  sense  of  being  capable  of  enforcement  by  judicial 
proceedings  against  a  municipal  government,  has,  nevertheless, 
in  equity  and  justice,  in  the  larger  sense  of  those  terms,  a  right 
to  indemnity  and  compensation  out  of  the  public  treasury. ' ' 78 


TO  People  v.  Batchelor,  53  N.  Y. 
128.  See  opinion  of  Grover,  J.,  re- 
viewing the  authorities.  But  see 
United  States  v.  Railroad  Co.,  17 
Wall.  322.  In  People  v.  Kelly 
(Brooklyn  and  New  York  Bridge 
Case),  5  Abb.  New  Cas.  383,  it  was 
held  that  the  erection  of  a  bridge 
to  connect  the  two  cities  was  a  city 
purpose,  for  which  indebtedness 
might  be  incurred. 

77  New  Orleans  v.  Clark,  95  U.  S. 
644 ;  Blandin  v.  Burr,  13  Cal.  343 ; 
Guilford  v.  Supervisors,  18  Barb. 
615,  13  N.  Y.  144 ;  Brewster  v.  Sy- 
racuse, 19  N.  Y.  116;  Thomas  v. 
Leland,  24  Wend.  65 ;  People  v.  Su- 
pervisors, 70  N.  Y.  228;  Cole  v. 
State,  102  N.  Y.  48,  6  N.  E.  277; 
O'Hara  v.  State,  19  N.  E.  659,  112 
N.  Y.  146.  "The  legislature  may 
determine  what  moneys  they  may 
raise  and  spend,  and  what  taxation 
for  municipal  purposes  may  be  im- 


posed ;  and  it  certainly  does  not 
exceed  its  constitutional  authority 
when  it  compels  a  municipal  cor- 
poration to  pay  a  debt  which  has 
some  meritorious  basis  to  rest 
upon."  Mayor,  etc.  of  New  York 
v.  Tenth  Nat.  Bank,  111  N.  Y.  446, 
18  N.  E.  618 ;  Wrought  Iron  Bridge 
Co.  v.  Town  of  Attica,  119  N.  Y. 
204 ;  Lycoming  v.  Union,  15  Pa.  St. 
166;  Hasbrouck  v.  Milwaukee,  21 
Wis.  219 ;  Grogan  v.  San  Francisco, 
18  Cal.  590;  Sinton  v.  Ashbury, 

41  Cal.  525 ;  Creighton  v.  San  Fran- 
cisco, 42  Cal.  446 ;  Nevada  v.  Hamp- 
ton, 13  Nev.  441.     Contrast,  Hoag- 
land  v.  Sacramento,  52  Cal.  142. 

78  Creighton    v.    San    Francisco, 

42  Cal.    446;    Guilford   v.    Super- 
visors,   18    Barb.    615;    Vassar   v. 
George,  47  Miss.  713.   The  liability 
of  this  power  to  abuse  is  pointed 
out    by    Mr.    Justice     O'Brien,    in 
Matter  of  Cullen,  53  Hun  (N.  Y.) 


276  PUBLIC   CORPORATIONS.  [§279 

In  a  leading  case  in  New  York  79  it  was  held  that  the  legisla- 
ture might  legally  levy  a  tax  upon  the  taxable  property  of  a 
town,  and  appropriate  the  same  to  the  payment  of  a  claim  made 
by  an  individual  against  the  town,  although  the  claim  had  been 
expressly  rejected  by  the  voters  of  the  town  at  an  election  author- 
ized by  an  act  of  the  legislature,  and  which  declared  that  their 
action  should  be  final  and  conclusive.  This  case,  although  carry- 
ing the  doctrine  of  legislative  power  to  the  farthest  limit,  has  been 
generally  approved,  although  it  has  met  with  criticism  by  courts 
of  high  standing.  It  may  be  defended,  says  Judge  Cooley,80 
upon  the  ground  that  it  is  the  right  and  duty  of  the  state  to  see 
that  the  powers  it  confers  are  not  abused  to  the  injury  of  those 
who  have  relied  upon  them,  and  that  when  a  political  corporation 
has  contracted  a  debt  or  incurred  an  obligation,  it  has  already 
taken  the  initiatory  step  in  taxation ;  and  has  in  effect  given  its 
consent  that  the  subsequent  steps,  so  far  as  they  may  be  essential 
to  the  discharge  of  such  debt  or  debts,  may  be  taken. 

But  in  "Wisconsin  an  act  of  the  legislature  compelling  the  tax- 
ation of  a  town  to  pay  for  a  bounty  to  a  volunteer  and  the  ex- 
penses of  an  unsuccessful  suit  to  recover  the  same  was  held  in- 
valid on  the  ground  that  it  was  not  for  a  legitimate  public  pur- 
pose.81 

V.    THE  TERRITORY  AND  BOUNDARIES. 

§  279.  The  general  rule. — Unless  restricted  by  the  constitu- 
tion, the  legislature  has  general  power  to  determine82  and  alter 

534.    As  to  the  right  of  the  corpo-  mer  v.  Village  of  Douglas,  64  N.  Y. 

ration    to    an    ordinary    trial,    see  91,   21  Am.   Rep.   586.     Approved, 

Cooley,  Taxation,  p.  687 ;  Sauborn  arguendo,  in  United  States  v.  Bal- 

v.  Rice  Co.,  9  Minn.  273 ;  State  v.  timore  &  Ohio  R.  R.  Co.,  17  Wall. 

Tappan,  29  Wis.  664;  Plimpton  v.  322  (1872)  ;  New  Orleans  v.  Clark, 

Somerset,  33  Vt.  283;  In  re  Perm-  95  U.  S.  654  (1877).    Same  princi- 

sylvania  Hall,  5  Pa.  St.  204.  pie   affirmed   in   Massachusetts   in 

19  Guilford    v.     Supervisors,    18  Carter  v.   Bridge  Proprietors,  104 

Barb.  615 ;  also  13  N.  Y.  143 ;  Brew-  Mass.  236  (1870) .  See,  also,  Cooley, 

ster   v.    Syracuse,    19   N.    Y.   116;  Const.  Lim.   (7th  ed.)  333-340  and 

People  v.  Mayor  of  Brooklyn,  4  N.  notes. 

Y.    419;    Thomas    v.    Leland,    24  so  Cooley,     Taxation     (2d     ed.), 

Wend.  65   (1840)  ;  People  v.  Day-  685. 

ton,  55  N.  Y.  367  (1874)  ;  Guilford  si  state  v.  Tappan,  29  Wis.  664, 

v.   Supervisors,   followed  in   Blan-  9  Am.  Rep.  622. 

din  v.  Burr,  13  Cal.  343    (1859);  »2  Roane  v.   Anderson,  89  Tenn. 

N.  Mo.  R.  R.  Co.  v.  McGnire,  49  259 ;  Washburn  v.  Oshkosh,  60  Wis. 

Mo.  490  (1872).    Criticised  in  Wei*-  453. 


§  279]  LEGISLATIVE    CONTROL.  277 

the  territorial  limits  and  boundaries  of  all  public  corporations.83 
After  the  territorial  limits  are  once  determined,  it  may  ' '  annex  or 
authorize  the  annexation  of  the  contiguous  or  other  territory; 
and  this  without  the  consent,  or  even  against  the  remonstrance,  of 
the  majority  of  the  persons  residing  in  the  corporations  or  on  the 
annexed  territory/'84  But  some  limitations  have  been  placed 
by  the  courts  upon  this  general  power.  Thus,  it  has  been  held 
that  non-contiguous  territory  cannot  be  annexed ; 85  and  that 
an  unoccupied  tract  of  country  cannot  be  made  a  part  of  a  village 
for  the  mere  purpose  of  increasing  the  village  revenue.86  As 
said  in  a  recent  well-considered  case,87  the  legislature  has  power 
to  extend  the  boundaries  and  thus  enlarge  the  territorial  limits 
of  a  city  or  town ;  but  such  acts  are  to  be  interpreted  and  applied 
according  to  the  essential  nature  as  well  as  the  subject-matter  of 
the  legislation.  ' '  Territory  not  in  fact  connected  with  or  adjacent 
to  a  city  cannot  be  regarded  as  a  part  of  a  municipal  corporation, 
or  as  an  addition  thereto,  in  any  true  sense  of  the  term."  It  was 
consequently  held  that  the  legislature  had  not  the  power  to  ex- 
tend or  enlarge  the  limits  of  a  specially  chartered  town  or  city  by 
adding  thereto  non-contiguous  lands, — that  is,  lands  entirely  sep- 
arated from  the  municipality  by  intervening  territory.  The 
power  to  annex  territory  may  be  delegated  to  a  municipality,88 

ssBlanchard  v.  Bissell,  11  Ohio  «*  Dillon,  Mun.  Corp.,  §185. 

St.  96 ;  Winona  v.  School  District,  ^  Denver  v.  Coulehan,  20  Colo. 

40  Minn.  13,  3  L.  R.  A.  45 ;  State  471,  27  L.  R.  A.  751 ;  Chicago,  etc. 

v.  Lake  City,  25  Minn.  404 ;  Gales-  Ry.  Co.  v.  Oconto,  50  Wis.  189,  36 

burg   v.   Hawkinson,   75   111.   152;  Am.  Rep.  840. 

Martin  v.   Dicks,  52  Miss.   53,  24  se  Smith  v.  Sherry,  50  Wis.  200 ; 

Am.  Rep.  661;  Daly  v.  Morgan,  69  Princess  Co.  Com.  v.  Bladensburg, 

Md.  460;  Norris  v.  Waco,  57  Tex.  51  Md.  468. 

635 ;  Chandler  v.  Boston,  112  Mass.  ST  Denver  v.  Coulehan,  20  Colo. 

200 ;  Mt.  Pleasant  v.  Beckwith,  100  471,  27  L.  R.  A.  751. 

IT.    S.   514 ;    Morford   v.    Unger,   8  ««  State  v.  Forest,  74  Wis.  610 ; 

Iowa,  82 ;  Hewitt's  Appeal,  88  Pa.  Kelly  v.  Meeks,  87  Mo.  396 ;  Stros- 

St.   55;    Chicago,    etc.   Ry.    Co.   v.  ser   v.'  Ft.   Wayne,   100  Ind.  443; 

Langlade,  56  Wis.  614;   People  v.  Mendenhall    v.    Burton,   42    Kan. 

Riverside,    70   Cal.    461 ;    Roby   v.  570,  22  Pac.  558.    In  State  v.  War- 

Sheppard,  42  W.  Va.  286,  26  S.  E.  ner,  4  Wash.  773,  17  L.  R.  A.  263, 

278.     A   judicial   district   may   be  it  was  held  that  the  annexation  of 

abolished   by  transferring   all   the  territory  to  a  city  is  not  an  amend- 

counties  comprising  it  to  another  ment    of    its    charter    within    the 

district.     Aikman  v.  Edwards,  55  meaning   of   the   provision   of   the 

Kan.  751,  30  L.  R.  A.  149.  constitution  which  requires  amend- 


278  PUBLIC   CORPORATIONS.  [§  280 

and  it  is  then  for  the  court  to  determine  whether  the  power  has 
been  properly  exercised.89 

§  280.  What  territory  may  be  annexed.— The  authority  del- 
egated is  generally  to  annex  adjacent  or  contiguous  territory. 
Adjacent  lands  means  those  lands  lying  so  near  and  in  such 
close  proximity  to  the  territory  of  a  municipality  as  to  be  sub- 
urban in  their  character  and  to  have  some  unity  of  interest  with 
the  city.90  Contiguous  lands  are  such  as  are  not  separated  from 
the  corporation  by  outside  lands.91  Corporate  limits  may  reason- 
ably and  properly  be  extended  so  as  to  take  in  contiguous  lands — 

1.  When  they  are  platted  and  held  for  sale  or  use  as  town 
lots. 

2.  Whether  platted  or  not,  if  they  are  held  to  be  bought  on 
the  market,  and  sold  as  town  property  when  they  reach  a  value 
corresponding  with  the  views  of  the  owner. 

3.  When  they  furnish  the  abode  for  a  densely-settled  com- 
munity or  represent  the  actual  growth  of  a  town  beyond  its  legal 
limits. 

4.  When  they  are  needed  for  any  proper  town  purpose,  as 
for  the  extension  of  the  streets  or  sewer,  gas  or  water  system, 
or  to  supply  places  for  the  abode  or  business  of  its  citizens,  or  for 
the  extension  of  needed  police  regulations. 

5.  When  they  are  valuable  by  reason  of  their  adaptability  for 
prospective  town  uses.     But  the  mere  fact  that  their  value  is 
enhanced  by  reason  of  their  nearness  to  the  corporation  is  no 
ground  for  their  annexation,  unless  it  appears  that  the  enhanced 
value  is  due  to  adaptability  to  town  uses. 

But  city  limits  should  not  be  extended  so  as  to  take  in  contigu- 
ous lands — 

1.  When  they  are  used  only  for  agriculture  or  horticulture, 
and  are  valuable  on  account  of  such  use. 

ments  to  be  submitted  to  the  vote  »°  State,    Childs    v.    Village    of 

of  the  people.    To  the  contrary  see  Minnetonka,   57  Minn.   526,   25   L. 

Westport  v.  Kansas  City,  103  Mo.  R.  A.  755.    The  cases  are  digested 

141.  in  a  note  to  this  case. 

ssEwing  v.   State,  81  Tex.  177;  »i  Vestal  v.  City  of  Little  Rock, 

State  v.  Eidson,  76  Tex.  302,  7  L.  54  Ark.  321,  11  L.  R.  A.  778.    Lands 

R.    A.   733 ;    State   v.   Bennett,   29  on   the   opposite   side   of   a    river 

Mich.  451,  18  Am.  Rep.  107;  Vestal  from  a  city  may  be  contiguous  to 

v.  Little  Rock,  54  Ark.  321,  11  L.  the  city.     IMd.;  Denver  v.  Coule- 

R.  A.  778.  han,  20  Colo.  471. 


§  281]  •  LEGISLATIVE   CONTROL.  279 

2.  When  they  are  vacant  and  do  not  derive  special  value  from 
their  adaptability  for  city  uses.92 

§  281.  Illustrations. — There  are  many  cases  illustrating  the 
principle  stated  in  the  preceding  section.  Thus,  a  city  compris- 
ing two  miles  of  territory  cannot  incorporate  an  area  of  ten 
square  miles,  including  farms  and  unoccupied  country.93  Three 
square  miles  of  territory  containing  two  settlements  separated  by 
unoccupied  farm  lands,  unconnected  by  lines  of  buildings  or  im- 
provements, cannot  be  incorporated.94  A  ravine  dividing  two 
areas  of  population  is  not  such  a  natural  barrier  as  will  prevent 
the  including  of  both  in  one  village.95  Lands  occupied  by  the 
owner  exclusively  as  a  florist  and  farmer,  to  which  no  streets  or 
town  improvements  extend,  and  which  the  line  of  settlement  has 
not  reached,  cannot  be  annexed  and  subjected  to  municipal  tax- 
ation.96 A  boundary  cannot  be. extended  so  as  to  include  terri- 
tory already  included  in  another  city  without  direct  legislative 
authority,  which  must  authorize  the  restriction  of  the  territory 
of  the  other  corporation.97 

§  282.    Property  and  debts  upon  division  of  territory. — The 

right  of  the  legislature  to  alter,  divide  or  abolish  public  corpora- 
tions, and  to  make  such  a  division  of  property  and  apportion- 
ment of  debts  as  is  deemed  equitable,  is  well  settled.98  The  power 
is  strictly  legislative,99  and  not  subject  to  the  control  of  the 
courts.  The  apportionment  may  be  made  at  the  time  of  the  divi- 
sion of  the  territory  or  at  a  subsequent  time.  Where  the  original 
act  does  not  make  a  disposition  of  the  common  property  and 


92  Vestal  v.  City  of  Little  Rock,         98  Winona  v.  School  District,  40 
supra,  and  cases  cited  in  annota-  Minn.  13,  3  L.  R.  A.  45 ;  Johnson 
tion,  11  L.  R.  A.  778.  v.  San  Diego,  109  Cal.  468,  42  Pac. 

93  State  v.  Eidson,  76  Tex.  302,  7  249,  30  L.  R.  A.  178 ;  State  v.  Har- 
L.  R.  A.  733.  shaw,    73    Wis.    211 ;    Granby    v. 

94  In  re  Lakeville,  7  Kulp.  84.  Thurston,  23  Conn.  416 ;  Olney  v. 

95  in  re  Edgewood,  130  Pa.   St.  Harvey,  50  111.  453 ;  Larimie  Co.  v. 
348.  Albany  Co.,  92  U.  S.  307;   Darby 

96  Vestal  v.  City  of  Little  Rock,  v.  Sharon  Hill,  140  Pa.  St.  250. 
supra.  99  Bristol  v.  New  Chester,  3  N. 

97  Darby  v.  Sharon  Hill,  112  Pa.  H.  524 ;   Land  Co.   v.   Oneida,  83 
St.  66.     As  to  severance  of  terri-  Wis.  649. 

tory  in  which  rival  villages  have 
grown  up,  see  Ashley  v.  Calliope, 
71  Iowa,  466. 


280  PUBLIC   CORPORATIONS.  [§282 

debts,  "the  legislature  may  at  any  subsequent  time,  by  a  later 
act,  apportion  them  in  such  manner  as  seems  to  be  just  and 
equitable. ' ' l 

When  a  portion  of  the  territory  of  a  public  corporation  is  de- 
tached and  created  into  a  new  corporation,  or  attached  to  another 
existing  corporation,  and  the  legislature  makes  no  apportionment 
of  property  or  debts,  the  old  corporation  retains  all  the  public 
property,  including  what  falls  within  the  limits  of  the  new  cor- 
poration, and  is  responsible  for  all  the  debts  contracted  by  it 
before  the  separation,  without  claim  to  contribution.2  Thus, 
where  the  limits  of  a  school  district  were  so  changed  as  to  leave 
the  school-house  within  the  territory  of  another  district,  the 
original  district  was  held  to  retain  its  ownership  of  the  building.3 
But,  when  the  old  corporation  is  abolished  and  new  ones  created 
out  of  its  territory,  the  new  corporations  are  treated  as  successors 
of  the  old,  and  as  such  liable  for  its  debts  and  entitled  to  its 
property.  Each  of  the  corporations  will  then  take  the  public 
property  which  falls  within  its  limits.4 

1  Montgomery  Co.  v.  Menifee,  93  Mitchell  in  Winona  v.  School  Dist. 
Ky.  33;   Sedgwick  v.   Bunker,  16  Sup't:    "It   is   a   remarkable  fact 
Kan.  498.  that  these  suggestions  of  a  limita- 

2  Johnson  v.  San  Diego,  109  Cal.  tion  or  qualification  of  the  rule  are 
468,  42  Pac.  249,  30  L.  R.  A.  178,  not    only    purely    obiter,    but    the 
and  cases  cited;  Perry  Co.  v.  Con-  question  is  not  discussed;  no  rea- 
way  Co.  52  Ark.  430,  6  L.  R.  A.  665.  son   is  assigned  and  no  authority 
Contra,  Bowdoinham  v.  Richmond,  cited  in  its  support,   unless  it  be 
6  Me.  112,  19  Am.  Dec.  197 ;  Hamp-  the  old  case  of  North  Hempstead 
shire  Co.  v.  Franklin  Co.,  16  Mass.  v.  Hempstead,  2  Wend.  110." 

75.     It  has  been  said  that  when  a  Winona  v.   School  District,  40 

territory  is  detached  from  a  pub-  Minn.  13,  3  L.  R.  A.  45,  12  Am.  St. 

lie  corporation,  the  old  corporation  687. 

has  no  claim  upon  the  corporate  4  Shapleigh   v.   San   Angelo,   167 

property   which    falls   without   its  TJ.  S.  646;  Mobile  v.  Watson,  116 

new  boundaries.    Language  to  this  U.  S.  289 ;  Winona  v.  School  Dis- 

effect  was  used  in  Larimie  Co.  v.  trict,    supra;    Demattos    v.    New 

Albany  Co.,  92  U.   S.  307,  and  in  Whatcom,   4   Wash.   127,   29   Pac. 

Mt.  Pleasant  v.  Beckwith,  100  U.  933;    Stone    v.    Charlestown,    114 

S.  514.    But  as  said  by  Mr.  Justice  Mass.  214. 


CHAPTER  XX. 


CONSTITUTION  LIMITATIONS  UPON    LEGISLATIVE  POWER 
OVER  PUBLIC  CORPORATIONS. 


§283.  In  general. 

284.  General  laws. 

285.  The  requirement  of  a  "uni- 

form system  of  govern- 
ment." 

286.  Illustrations. 

287.  The  requirement  that  "laws 

of  a  general  nature  shall 
have  uniform  operation 
throughout  the  state." 

288.  Illustrations. 

289.  Local-option  laws. 

290.  Classification. 

291.  Class     containing     but     one 

member. 


§  292.  Geographical  conditions. 

293.  Population. 

294.  Illustrations. 

295.  Possible  accession  to  a  class. 

296.  Legislation     regulating     the 

"business,"  "affairs"  and 
"internal  affairs"  of  cor- 
porations. 

297.  The    prohibition    of    special 

legislation  "where  a  gen- 
eral law  can  be  made  ap- 
plicable." 

298.  Amendment  or  repeal  of  ex- 

isting special  charters. 


§283.  In  general. — The  evils  incidental  to  special  legisla- 
tion and  the  consequent  lack  of  uniformity  have  led  to  the  general 
adoption  of  constitutional  provisions  prescribing  the  manner  in 
which  the  legislature  shall  exercise  power  over  public  corpora- 
tions. Such  provisions,  in  so  far  as  they  affect  the  manner  of 
creating,  have  been  referred  to  in  a  former  chapter.1  Where  no 
such  limitations  are  found,  the  legislature  may  exercise  its  powers 
by  either  special  or  general  laws.  These  constitutional  provisions 
vary  in  form  and  language.  In  some  states  they  refer  only  to 
private  corporations,  while  in  others  they  refer  to  all  corporations 
except  those  created  for  municipal  purposes.  This  phrase  has  no 
definite  technical  import.  It  has  been  construed  as  applying  to 
a  corporation  established  for  the  purpose  of  raising  funds  and 
conducting  a  public  school.2  It  does  not  include  a  county  3  nor 


i  For  a  detailed  examination  of 
the  law  of  the  subject  considered 
in  this  chapter,  see  Binney's  Re- 
strictions upon  Local  and  Special 
Legislation  in  the  United  States. 

aHorton  v.  Mobile  School  Com- 


missioners, 43  Ala.  598.  See  St. 
Louis  v.  Shields,  62  Mo.  247,  at 
251. 

s  People   v.   McFadden,   81   Gal. 
489,  22  Pac.  851. 


281 


282 


PUBLIC   CORPORATIONS. 


[§284 


a  town.4  Neither  a  drainage  district5  nor  a  sanitary  district0 
are  included  in  the  provision  prohibiting  the  formation  of  "cities, 
towns  and  villages"  by  special  legislation.  So,  poor  districts  are 
not  included  within  a  provision  prohibiting  special  legislation 
"  regulating  the  affairs  of  counties,  townships,  wards,  boroughs 
and  school  districts. ' ' 7 

§  284.  General  laws. — A  general  law  is  one  which  operates 
equally  and  uniformly  upon  all  persons,  places  and  things 
brought  within  the  relations  and  circumstances  for  which  it  pro- 
vides ; 8  or,  in  the  words  of  a  leading  Pennsylvania  case,9  ' '  a 
statute  which  relates  to  persons  or  things  as  a  class  is  a  general 
law ;  while  a  statute  which  relates  to  particular  persons  or  things 
of  a  class  is  special."  The  mere  grouping  together  in  a  single 
act  of  a  number  of  special  or  local  laws  does  not  make  a  general 


*  Eaton  v.  Manitowoc  Co.,  44 
Wis.  489. 

s  Owners  of  Lands  v.  People,  113 
111.  296,  at  315. 

e  Wilson  v.  Board,  133  111.  443, 
27  N.  E.  203. 

TJenks  Township  v.  Sheffield 
'Township,  135  Pa.  St.  400,  19  Atl. 
1004.  See  (Board  of  Police  Com- 
missioners) State  v.  Covington,  29 
Ohio  St.  102.  A  provision  that  "no 
corporation  shall  be  created  or  its 
powers  increased  or  diminished  by 
special  law"  applies  to  private  cor- 
porations only.  Williams  v.  Nash- 
ville, 89  Tenn.  487,  15  S.  W.  364; 
State  v.  Wilson,  12  Lea  (Tenn.), 
246.  But  see  Corporate  Powers  of 
Council  Grove,  20  Kan.  619. 

estate  v.  Ferris,  53  Ohio  St. 
314,  30  L.  R.  A.  218;  People  v. 
Wright,  70  111.  388;  State  v. 
Cooley,  56  Minn.  540.  In  People  v. 
Cooper,  83  111.  585,  the  court  said : 
"The  number  of  persons  upon 
whom  the  law  shall  have  any  di- 
rect effect,  may  be  very  few,  by 
reason  of  the  subject  to  which  it 
relates,  but  it  must  operate  equal- 


ly and  uniformly  upon  all  brought 
within  the  relations  and  circum- 
stances for  which  it  provides."  In 
McAunich  v.  M.,  etc.  R.  Co.,  20 
Iowa,  388,  the  court  said:  "These 
laws  are  general  and  uniform,  not 
because  they  operate  upon  every 
person  in  the  state,  for  they  do  not, 
but  because  every  person  who  is 
brought  within  the  relations  and 
circumstances  provided  for,  is  af- 
fected by  the  law.  They  are  gen- 
eral and  uniform  in  their  opera- 
tion upon  all  persons  in  the  like 
situation,  and  the  fact  of  their  be- 
ing general  and  uniform  is  not  af- 
fected by  the  number  of  those 
within  the  scope  of  their  opera- 
tion." See,  also,  Welker  v.  Pot- 
ter, 18  Ohio  St.  85;  Kingsbury  v. 
Sperry,  119  111.  279;  State  v.  Par- 
sons, 40  N.  J.  L.  1 ;  Eckerson  v. 
Des  Moines,  137  la.  452,  115  N.  W. 
177. 

»  Wheeler  v.  Philadelphia,  77  Pa. 
St.  338 ;  State  v.  Spande,  37  Minn. 
322.  See  Earle  v.  Bd.  of  Educa- 
tion, 55  Cal.  489;  Harwood  v. 
Wentworth,  162  U.  S.  547. 


§  285]  CONSTITUTIONAL   LIMITATIONS.  283 

law.  Thus,  an  act  providing  that  in  eight  designated  counties 
of  the  state  a  certain  official  should  receive  a  fixed  annual  salary 
named  therein  is  a  special  law.10  The  words  "laws  of  a  general 
nature"  have  practically  the  same  meaning.  A  law  is  of  a  general 
nature  if  it  affects  the  whole  of  a  class  of  persons  or  things.11 

§285. — The  requirement  of  a  "uniform  system  of  govern- 
ment."— A  constitutional  provision  to  the  effect  that  "the  leg- 
islature shall  establish  but  one  system  of  town  and  county  gov- 
ernment, which  shall  be  as  nearly  uniform  as  practicable,"  is 
mandatory.12  Its  purpose  is  to  prevent  the  legislature  from  es- 
tablishing different  systems  of  town  and  county  government  as 
well  as  to  prevent  special  legislation.  But  "where  the  legislature 
has  established  a  system  of  town  and  county  government  sub- 
stantially uniform  throughout  the  state,  it  may  be  conceded  that 
its  action  is  final  upon  the  matter.  The  courts  in  such  a  case 
would  not  attempt  to  review  the  action  of  the  legislative  body, 
and  decide  whether  it  might  not  have  perfected  a  system  more 
nearly  uniform.  But,  when  a  law  like  the  one  before  us  breaks 
the  uniformity  of  a  system  already  in  operation,  it  seems  to  us 
that  it  is  a  proper  exercise  of  judicial  power  to  declare  that  the 
act  is  void,  because  it  departs  from  the  rule  of  uniformity  which 
the  constitution  enjoins.13  The  requirement  of  a  uniform  system 
of  government  does  not  prohibit  the  classification  of  public  cor- 


10  Board  of  Freeholders  v.  Stev-  ture    shall    provide    a    system    of 
enson,  46  N.  J.  L.  173.  county   *    *    *    government    which 

11  Brooks  v.  Hyde,  37  Cal.  366.  shall   be  as  nearly  as  practicable 

12  State  v.  Dousman,  28  Wis.  541,  uniform     throughout     the     state," 
per  Lyon,  J. ;  State  v.  Riordan,  24  was    held    to    be    directory    only. 
Wis.  484 ;  State  v.  Supervisors,  25  Rhodes,    J.,    said :    "We    have    no 
Wis.  339 ;  Land,  etc.  Co.  v.  Brown,  hesitation    in    saying    that    policy 
73  Wis.  294,  3  L.  R.  A.  472.     See,  forbids  the  attempt  on  the  part  of 
also,   State  v.   Boyd,   19  Nev.  43.  the  judiciary,  at  this  late  day,  to 
The  provision  in  the  constitution  determine  how  far  it  is  practica- 
of  Illinois  that  "the  general  assem-  ble  to  maintain  uniformity  in  the 
bly  shall  provide  by  a  general  law  system     of     county     governments, 
for  a  township  organization,"  etc.,  They  are  now  so  diverse,  in  most 
has  no  reference  to  counties.  Leach  respects,  except  the  names  of  the 
v.   People,   122   111.  420.     In  New  bodies  invested  with  governmental 
Jersey     "town"     includes     cities,  functions,   that  scarcely  any  two 
State  v.   Parsons,   40  N.   J.  L.  1.  counties  have  governments  similar 
In  People  v.  Lake  County,  33  Cal.  in  all  particulars." 

487,  a  provision  "That  the  legisla-         is  State  v.  Riordan,  24  Wis.  484. 


284 


PUBLIC   CORPORATIONS. 


[§285 


porations  for  legislative  purposes ; 14  but  all  in  the  same  class 
must  possess  the  same  power  and  be  subject  to  the  same  restric- 
tions, as  ' '  a  system  of  municipal  government  in  which  cities  of  the 
same  class  may  have  dissimilarity  in  character  of  organization  as 
well  as  different  powers  is  not  a  uniform  system  within  the  mean- 
ing of  the  constitution. ' ' 15  The  mere  fact  that  diverse  results 
may  flow  from  the  execution  of  granted  powers  of  local  govern- 
ment does  not  render  the  enabling  statute  special  or  local.16  If 
the  same  powers  are  possessed  by  all  municipalities  of  the  same 


i*  Lake  v.  Palmer,  18  Fla.  501. 

is  McConlhe  v.  McMurray,  17 
Fla.  238;  State  v.  Stark,  18  Fla. 
255. 

i«  In  re  Petition  of  Cleveland,  52 
N.  J.  L.  188.  Said  Van  Syckel,  J. : 
"Uniformity  in  results  cannot  co- 
exist with  the  right  of  local  self- 
government  until  all  men  shall  be 
of  one  mind.  No  one  will  assert 
that  an  act  is  local  or  special 
which  gives  to  all  the  cities  of  this 
state  the  right  to  establish,  by  or- 
dinance, the  mode  in  which  their 
subordinate  officers  shall  be  elect- 
ed. Under  such  a  statute,  one  city 
might  make  the  tenure  of  office  a 
term  of  years,  another  during  good 
behavior,  and  a  third  at  the  will 
of  the  common  council.  Such  di- 
verse results  in  the  execution  of 
the  granted  power,  obviously,  could 
not  outlaw  the  act  of  the  legisla- 
ture. The  authority  granted  to  all 
is  the  same;  the  dissimilarity  is  in 
its  use — a  dissimilarity  inherent 
in  the  idea  of  local  government. 
The  uniformity  exacted  by  the  con- 
stitutional mandate  must  be  sought 
for,  not  in  the  results  which  flow 
from  the  free,  unhampered  exer- 
cise of  the  granted  power  of  local 
government,  but  in  the  fact  that 
every  locality  is  afforded  a  like 
right  to  adopt  and  exercise,  in  its 
own  way,  the  same  powers  which 
are  bestowed  upon  every  other  like 


political  body.  To  the  one  no  priv- 
ilege must  be  offered  for  accept- 
ance which  is  not  extended  to  the 
other.  The  authority  given  must 
be  the  same;  it  may  be  executed 
in  a  different  way,  or  in  the  same 
way,  at  the  option  of  the  recipient. 
That  is  the  uniformity  to  which 
the  judicial  declarations  in  the 
adjudged  cases  in  this  state  must 
be  referred.  One  of  the  conspicu- 
ous evils  at  which  this  constitu- 
tional amendment  was  aimed,  was, 
in  my  judgment,  this:  that  prior 
to  the  amendment  a  few  persons 
could  go  before  the  legislature  and 
secure  the  passage  of  a  special  law 
to  promote  their  own  purposes, 
which  might  be  obnoxious  to  the 
body  of  citizens.  In  such  event, 
the  only  remedy  was  by  an  appeal 
to  a  subsequent  legislature,  and 
that  might  be  too  late  to  wholly 
repair  the  mischief.  Such  enact- 
ments are  now  forestalled  by  the 
fact  that  they  cannot  be  made  ap- 
plicable without  being  submitted 
to  the  approval  of  the  entire  body 
of  voters.  In  this  way  the  people 
of  every  city  are  left  free  to  select 
the  mode  in  which  they  will  regu- 
late and  conduct  their  local  affairs, 
and  it  is  this  which  impresses  such 
legislation  with  the  character  of 
general,  and  not  special,  legisla- 
tion. Gauged  by  this  standard, 
there  is  no  infirmity  in  the  legis- 


§  286]  CONSTITUTIONAL  LIMITATIONS.  285 

class,  the  law  is  general.  It  has  been  held  that  such  a  provision 
is  not  intended  to  secure  uniformity  in  the  exercise  of  delegated 
police  powers,  but  to  forbid  the  passing  of  a  law  vesting  in  one 
town  or  county  an  authority  of  local  government  not  granted  to 
another  of  the  same  class.17  As  a  matter  of  course,  the  legislature 
cannot  do  indirectly  what  it  cannot  do  directly.  Hence,  it  cannot 
enact  a  special  law  to  legalize  a  defective  incorporation  under  the 
general  law,  without  violating  the  provision  that  the  legislature 
shall  establish  a  uniform  system  of  county,  town  and  municipal 
government.18 

§286.  Illustrations. — Under  the  provision  requiring  uni- 
formity.— An  act  which  provides  for  a  county  board  of  super- 
visors of  eight  members  in  a  certain  county,  while  under  the  gen- 
eral law  in  force  in  all  parts  of  the  state  such  boards  have  three 
members,  violates  the  provision  requiring  uniformity.19  "Where 
by  an  existing  general  law  the  power  was  conferred  upon  all 
county  boards  "to  build  and  keep  in  repair  county  buildings," 
it  was  held  that  an  act  appointing  three  commissioners  "to  super- 
intend the  erection  of  a  court-house  in  the  county  of  M."  was 
invalid.20  So,  an  act  restricting  the  ' '  power  of  the  supervisors  of 

lation  which  is  the  subject  of  this  20  Said  Paine,  J. :  "It  takes  an 
controversy.  It  applies  to  the  en-  important  general  power  of  the 
tire  class;  there  is  no  exception,  county  board  in  that  county  (Mil- 
It  is  held  out  to  the  free  accept-  waukee) ,  and  confers  it  upon  spe- 
ance  of  all,  and  is  capable  of  being  cial  commissioners  designated  by 
accepted  or  rejected  by  every  city  the  legislature.  That  it  is  not  a 
in  the  state.  In  determining  uniform  system  to  provide  that  in 
whether  an  act  is  general  or  spe-  one  county  the  power  to  build  the 
cial,  we  must  regard  the  time  of  county  buildings  shall  be  vested  in 
its  enactment.  If  it  applies  to  all  special  commissioners  selected  by 
cities  then  in  existence,  it  seems  the  legislature,  while  in  other 
to  be  a  contradiction,  in  terms,  to  counties  the  same  power  is  vested 
say  that  it  is  special.  To  be  spe-  in  the  boards  of  supervisors  elected 
cial,  it  must  exclude  some;  if  it  by  the  people,  is  obvious.  It  Is 
excludes  none,  and  expressly  em-  equally  obvious  that  it  is  not  as 
braces  all,  it  must  be  general."  uniform  as  practicable,  because  it 
See,  also,  Albright  v.  Sussex  Co.,  is  self-evident  that  this  power 
etc.,  Corn'rs,  68  N.  J.  L.  523,  53  Atl.  might  be  vested  in  the  county 
612.  boards  in  all  the  counties.  Inde- 

IT  Paul  v.  Gloucester,  50  N.  J.  L.  pendent  of  this  act,  it  was  so 

585.  vested  in  fact.  There  was,  under 

is  Enterprise  v.  State,  29  Fla.  the  existing  law,  complete  uni- 

128,  10  So.  740.  formity."  State  v.  Supervisors,  25 

i»  State  v.  Riordan,  24  Wis.  484.  Wis.  339. 


286  PUBLIC   CORPORATIONS.  [§  287 

Milwaukee  county  to  act  upon  claims  against  the  county  and 
enter  into  contracts  in  its  behalf  without  previous  action  thereon 
by  the  county  auditor,"  was  held  void  as  an  attempt  to  take  from 
that  board  important  powers,  which  it  possessed  under  the  gen- 
eral statute  of  the  state.21  An  act  relating  to  county  aid  in  the 
construction  of  bridges,  which  provided  that  "this  act  shall  not 
apply  to  the  county  of  Grant,"  violates  the  requirement  of  uni- 
formity.22 But  "the  power  to  construct  drains  is  in  no  proper 
sense  a  part  of  the  usual  powers  belonging  to  town  and  county 
government,  but  is  a  special  authority  given  for  a  particular  pur- 
pose, which  may  be  conferred  upon  any  persons  or  body  upon 
which  the  legislature  may  see  fit  to  confer  it."  Hence,  an  act 
providing  for  lowering  the  ordinary  level  of  water  in  certain  lakes 
in  a  designated  county  and  for  the  drainage  of  wet  and  over- 
flowed lands  in  any  part  of  said  county,  different  from  the  system 
of  drainage  in  the  remainder  of  the  state,  is  valid.23 

Under  the  provisions  requiring  uniformity  in  legislation  affect- 
ing public  corporations,  an  act  which  tends  to  remove  existing 
diversity  is  valid.  Thus,  where  the  peculiarities  which  the  act 
sought  to  abolish  existed  in  but  one  county,  it  was  said  that 
"whenever  an  act  of  the  legislature  is  general  in  its  terms,  and 
the  only  effect  is  to  remove  in  some  degree  the  differences  in  the 
various  regulations  of  the  internal  affairs  of  towns  or  counties, 
and  to  subject  those  internal  affairs  to  the  operation  of  a  general 
law,  the  act  is  not  prohibited  by  the  constitution,  but  is  in  strict 
accordance  with  the  command  of  that  instrument,  which  ex- 
pressly enjoins  upon  the  legislature  the  passage  of  laws  for  such 
cases."24 

§  287.  The  requirement  that  "laws  of  a  general  nature  shall 
have  uniform  operation  throughout  the  state." — This  pro- 
vision is  found  in  the  constitutions  of  many  of  the  states.25  Its 
effect  is  to  prevent  the  legislature  from  restricting  the  operation 

21  State  v.  Dousman,  28  Wis.  541.  to  the  general  law,"  was  held  void. 

In  McRae  v.  Hogan,  39  Wis.  529,  22  La    Valle    v.    Supervisors,    62 

an  act  which  attempted  to  "take  Wis.  376. 

from  the  possession  and  control  of  23  Bryant   v.    Bobbins,   7    Iowa, 

the    town    officers    in    Chippewa  258. 

County   a  portion   of   the   moneys  24  Freeholders   v.    Stevenson,   46 

laised  in  their  towns  for  highway  N.  J.  L.  173. 

purposes,  and  intrust  its  expendi-  25  For  its  history  see  McGill  v. 

ture  to  the  county  board,  contrary  State,  34  Ohio   St.  228. 


§  288]  CONSTITUTIONAL   LIMITATIONS.  287 

of  laws  of  a  general  nature  to  any  part  of  the  state  less  than  the 
whole.26  As  it  applies  to  general  laws  only,  it  does  not  prohibit 
proper  local  legislation.27  It  is  construed  as  meaning  "not  that 
general  laws  must  act  alike  upon  all  subjects  of  legislation,  or 
upon  all  citizens  and  persons,  but  that  they  shall  operate  uni- 
formly or  in  the  same  manner  upon  all  persons  who  stand  in  the 
same  category ;  that  is  to  say,  upon  all  persons  who  stand  in  the 
same  relation  to  the  law  in  respect  to  the  privileges  and  immuni- 
ties conferred  by  it,  or  the  acts  which  it  prohibits. "  28  It  does  not 
prevent  a  proper  classification  of  persons  and  subjects  for  pur- 
poses of  legislation,  as  laws  which  operate  uniformly  upon  mem- 
bers of  a  class  have  uniform  operation.  Of  course,  a  law  which  is 
in  full  force  in  every  part  of  the  state  has  a  uniform  operation 
throughout  the  state.29 

The  taking  of  a  class  out  of  the  general  terms  of  a  statute  by 
an  exception  is  as  obnoxious  to  the  restraint  imposed  by  this  pro- 
vision as  the  passage  of  a  special  act  affecting  and  relating  to  the 
excluded  corporation  only.  Thus,  a  provision  in  an  act  relating 
to  police,  that  it ' '  shall  not  apply  in  and  to  cities  commonly  known 
as  seaside  and  summer  resorts, ' '  renders  the  act  invalid. 

§  288.  Illustrations. — Whether  a  statute  is  of  a  general  nat- 
ure depends  not  upon  its  form,  but  upon  its  application  to  the 
subject-matter.30  A  law  may  thus  be  special  in  form,  and  yet 
come  within  this  provision.  The  courts  will  go  behind  the  form  of 
the  enactment  in  order  to  determine  its  character.  If  it  could 
be  assumed  merely  from  the  fact  of  the  enactment  of  a  statute  that 
the  legislature  had  information  showing  that  there  was  a  neces- 
sity for  such  legislation  in  respect  to  the  particular  locality,  all 
such  legislation  would  have  to  be  upheld  regardless  of  the  sub- 
ject-matter.31 On  the  other  hand,  a  law  may  relate  to  a  subject- 
matter  which  is  general,  and  still  not  be  of  a  general  nature.  The 
subject  may  be  general,  while  the  purpose  of  the  act  may  be  spe- 

26  Costello  v.  Wyoming,  49  Ohio     58  Ark.  407,  23  L.  R.  A.  264 ;  In  re 
St.  202,  30  N.  E.  613.  Oberg.  21  Oreg.  406,  14  L.  R.  A. 

27  state  v.  Judges,  21  Ohio  St.  1 ;     577. 

State    v.    Covington,    29    Ohio    St.         20  state   v.   Ferris,   53   Ohio   St. 

102 ;   Ruffner  v.   Commissioners,  1  314,  30  L.  R.  A.  218. 

Disn.  (Ohio),  196;  Cricket  v.  State,         so  state  v.  Ellet,  47  Ohio  St.  90, 

18  Ohio  St.  9 ;  People  v.  C.  P.  R.  23  N.  E.  931. 

R.  Co.,  43  Cal.  398,  at  432.  si  state  v.  Ellet,  47  Ohio  St.  90, 

28  Ex  parte  Smith,  38  Cal.  702 ;  23  N.  E.  931. 
Leep  v.  St.  Louis,  Iron  Mt.  Ry.  Co., 


288 


PUBLIC   CORPORATIONS. 


cial  and  local.32  Thus,  the  subject  of  common  schools  is  of  a 
general  nature,  but  it  is  held  in  Ohio  that  a  special  school  district 
may  be  formed  from  territory  within  the  limits  of  the  township, 
without  conflicting  with  a  constitutional  provision.33  The  follow- 
ing acts  have  been  held  invalid  because  contravening  the  consti- 
tutional requirement  that  all  laws  of  a  general  nature  must  have 
uniform  operation  throughout  the  state:  An  act  relating  to 
salaries  of  county  officers  in  counties  of  certain  classes,  as  it  pre- 
vented the  county  government  act,  which  was  essentially  a  law  of 
a  general  nature,  from  having  uniform  operation.34  An  act  pro- 
viding that  the  salaries  fixed  by  the  act  should  take  effect  at  dif- 
ferent times  in  different  counties.35  An  act  providing  for  the 
construction,  improvement  and  repair  of  sidewalks  in  or  leading 
out  of  villages,  because  the  subject-matter  was  of  a  character 
that  concerned  the  inhabitants  of  every  village  in  the  state.  But 
acts  designed  to  regulate  the  amount  of  compensation  of  local 
officers,36  regulating  the  police  force  in  the  city  of  Cincinnati 
through  a  board  of  commissioners  to  be  appointed  by  the  govern- 
or ;  37  conferring  power  upon  county  commissioners  to  erect  pub- 


82  State  v.  Shearer,  46  Ohio  St. 
275,  20  N.  E.  335. 

as  State  v.  Shearer,  46  Ohio  St. 
275,  20  N.  E.  335,  overruling  State 
v.  Powers,  38  Ohio  St.  54.  Such 
laws,  although  dealing  with  a  gen- 
eral subject-matter,  are  intended 
to  meet  purely  local  conditions  and 
requirements.  In  McGill  v.  State, 
34  Ohio  St.  228,  the  court  said: 
"It  is  easy  to  comprehend  that  a 
law  defining  burglary  or  bigamy 
and  its  penalty,  or  regulating  des- 
cent and  distribution,  or  prescrib- 
ing the  capacity  requisite  for  the 
testamentary  disposition  of  prop- 
erty, regulating  conveyances,  or 
prescribing  a  rate  of  interest  for 
the  use  of  money,  and  others  of 
similar  effect  and  operation,  are 
laws  of  a  general  nature,  requiring 
a  uniform  operation  throughout 
the  state.  To  discriminate  be- 
tween localities  or  citizens  in  the 
enactment  of  laws  of  such  a  na- 


ture would  be  to  grant  privileges 
or  impose  burdens  of  a  character 
which  it  was  the  clear  purpose  of 
the  constitution  to  provide  against. 
But  that  a  law  may  be  general  and 
concern  matters  purely  local  or 
special  in  their  nature,  or  may  be 
local  or  special  and  relate  to  a 
matter  that  may  be  made  the  sub- 
ject of  a  general  law,  not  only  rests 
upon  sound  reason,  but  is  well  sup- 
ported by  authority."  But  in 
State  v.  Ellet,  47  Ohio  St.  90,  23 
N.  E.  931,  the  court  said:  "The 
local  statute  must  be  upon  a  sub- 
ject in  its  nature  local  as  well  as 
local  in  its  operation." 

s*  Dougherty  v.  Austin,  94  Cal. 
601. 

35  Miller  v.  Kister,  68  Cal.  142. 

secrickett  v.  State,  18  Ohio  St. 
9;  Hart  v.  Murray,  48  Ohio  St. 
605. 

si  State  v.  Covington,  29  Ohio  St. 
102. 


§  289]  CONSTITUTIONAL  LIMITATIONS.  289 

lie  buildings ;  38  authorizing  county  commissioners  to  subscribe  on 
behalf  of  the  county  to  the  stock  of  a  railroad  company ; 39  pro- 
viding a  special  mode  of  selecting  jurors  in  a  designated  county,40 
have  been  held  to  be  of  a  local  nature  and  not  affected  by  this 
provision. 

§289.  Local-option  laws. — Statutes  allowing  the  people  of 
a  particular  locality  to  elect  between  different  systems  of  police 
regulation  or  local  government  necessarily  tend  to  prevent  gen- 
eral laws  from  having  a  uniform  operation  throughout  the  state. 
In  some  states  it  is  held  that  the  restrictions  upon  local  and  spe- 
cial laws  have  no  effect  upon  these  subjects ;  at  least  so  long  as 
the  communities  of  the  same  class  have  the  same  option.41  In 
Florida  it  was  held  that  an  option,  although  granted  to  every 
member  of  a  class,  violated  the  constitutional  provision.  The 
court  said :  42  "  The  government  of  each  class  must  be  the  same, 
and  such  must  be  the  result  of  the  action  of  the  legislature,  inde- 
pendent of  the  contingency  of  local  discretion  or  option  in  the 
premises. ' '  In  Pennsylvania  it  is  held  that  changes  in  the  general 
municipal  corporation  law  cannot  be  limited  to  such  cities  as 
adopt  the  new  law.43  So,  a  law  repealing  a  general  fence  law, 
but  to  take  effect  only  in  such  counties  as  should  vote  for  the  re- 
peal of  the  general  law,  is  invalid.44  The  great  weight  of  au- 
thority supports  the  principle  that  the  legislature  may  permit 
a  locality  to  determine  whether  intoxicating  liquors  shall  be  sold 

ssRuffner  v.  Com.,  Disn.  (Ohio),  of  a  general  nature  requiring  uni- 

196.  formity  of  operation  throughout 

39  Cass  v.  Dillon,  2  Ohio  St.  607.  the  state,  but  was  designed  to  meet 

4oMcGill  v.  State,  34  Ohio  St.  a  special  want  in  a  particular 

228.      In    this    case    it    was    not  county  and  was  not  in  conflict  with 

doubted  that  the  matter  of  select-  the  constitution. 

ing  jurors  was  a  general  subject  «  Paul  v.  Gloucester  County,  30 

in  which  the  people  of  the  state  at  N.  J.  L.  585 ;  In  re  Cleveland,  52 

large    was    interested,    and    that  N.  J.  L.  188 ;  State  v.  Pond,  93  Mo. 

since  the  organization  of  the  state  606;    People   v.   Hoffman,   116   111. 

it  had  been  provided  for  by  the  587.     Contra,  People  v.  Cooper,  S3 

general  law,  so  that  the  law  pro-  111.  585. 

viding  a  special  mode  of  selecting  *2  McConihe    v.    State,    17    Fla. 

jurors    in    that    county    was    one  238. 

treating   of  a   general   subject  al-  *s  Commonwealth    v.    Denworth, 

ready   embraced   in   general   laws,  145  Pa.  St.  172;  People  v.  Cooper, 

making  provisions  applicable  to  all  S3  111.  585. 

counties  in  the  state ;  but  the  court  44  Frost  v.  Cherry,  122  Pa.   St. 

held  that  this  act  was  not  a  law  417. 

19 


290 


PUBLIC   CORPORATIONS. 


[§290 


within  its  limits.  If  the  law  is  complete  when  it  comes  from  the 
hands  of  the  legislature,  it  is  a  general  law  operative  throughout 
the  state;  thus,  a  statute  permitting  a  certain  penalty  in  a  pro- 
hibitory liquor  law  to  be  suspended  in  any  city  upon  the  filing  of 
the  written  consent  of  a  certain  proportion  of  the  voters  is  not 
local  or  special ;  and  it  does  not  tend  to  produce  diversity  of  laws 
in  the  different  parts  of  the  state.  The  court  said:  "The  act  is 
complete  in  itself,  requires  nothing  further  to  give  it  validity, 
and  does  not  depend  upon  the  popular  vote  of  the  people. ' ' 45 
An  act  which  tends  to  diminish  diversity  and  establish  greater 
uniformity  in  the  system  is  not  invalidated  by  a  provision  that 
it  shall  be  operative  only  on  such  members  of  the  class  to  which  it 
relates  as  shall  accept  its  provisions.46  But  where  the  exercise 
of  this  discretionary  power  would  tend  toward  diversity  instead 
of  uniformity,  as  where  corporations  existing  under  the  control  of 
the  general  law  would,  by  accepting  the  act,  become  members 
of  a  class  by  themselves,  the  act  is  invalid.47 

§290.     Classification. — The  legislature  may,  for  purposes  of 
legislation,  divide  the  subject-matter  of  legislation  into  classes 


45  State  v.  Forkner,  94  Iowa,  733, 
28  L.  R.  A.  206,  reviewing  many 
authorities.    Contra,  State  v.  Weir, 
33  Iowa,  134,  11  Am.  Rep.  115.  For 
a  discussion  of  the  submission  of 
state  and  local  laws  to  the  vote  of 
the   people,    see   Oberholtzer,    The 
Referendum    in    America,    Phila., 
1893. 

46  Reading  v.  Savage,  124  Pa.  St 
328.     In  re  Cleveland,  52  N.  J.  L. 
188,  a  law  authorizing  the  mayors 
of  all  cities  of  the  state  to  appoint 
the  principal  municipal  officers,  to 
become  operative  in  such  cities  as 
elect  to  accept  it,  was  held  general. 
In  Stanfield  v.  State,  83  Tex.  317, 
18    S.    W.    577,    an    act    author- 
izing the  commissioners'   court  to 
abolish  the  office  of  county  super- 
intendent   "when,    in    their    judg- 
ment, such  court  may  deem  it  ad- 
visable,"  was  held  general,   as   it 
related   to    the    entire    state.     In 


State  v.  Hunter,  38  Kan.  578,  17 
Pac.  Rep.  177,  an  act  providing  for 
the  appointment  of  a  board  of  po- 
lice commissioners  by  the  execu- 
tive council,  upon  the  petition  of 
two  hundred  bona  fide  household- 
ers, or  when  the  council  shall  deem 
it  advisable  for  the  better  govern- 
ment of  such  cities,  was  held  to 
be  a  general  law.  In  State  v. 
Pond,  93  Mo.  606,  6  S.  W.  469,  Nor- 
ton, J.,  said:  "The  fact  that  one 
or  more  counties,  or  one  or  more 
cities  or  towns,  may  by  a  majority 
vote  put  the  law  in  operation  in 
said  county  or  counties,  cities  and 
towns,  and  other  counties,  cities 
and  towns,  may  not  do  so,  does  not 
affect  the  rule,  nor  furnish  a  test 
by  which  to  decide  whether  the 
law  is  local  or  general." 

47  Scranton's  Appeal,  113  Pa.  St 
176,  6  Atl.  158.  Affirmed  in  Com. 
v.  Halstead  (Pa.),  7  Atl.  221. 


§  290]  CONSTITUTIONAL   LIMITATIONS.  291 

and  then  legislate  for  each  class  as  a  whole.48  But  a  valid  classi- 
fication must  have  a  basis  in  reason,  and  not  be  adopted  arbi- 
trarily as  a  mere  cover  for  special  legislation  under  the  form  of 
general  legislation.49  "The  underlying  principle  of  all  cases," 
says  Mr.  Justice  Sterrett,50  "is  that  all  classification  with  a  view 
of  legislating  for  either  class  separately,  is  essentially  unconsti- 
tutional, unless  a  necessity  therefor  exists — a  necessity  springing 
from  manifest  peculiarities,  clearly  distinguishing  those  of  one 
class  from  each  of  the  other  classes,  and  imperatively  demanding 
legislation  for  each  class,  separately,  that  would  be  useless  and 
detrimental  to  the  others.  Laws  enacted  in  pursuance  of  such 
classification  and  for  such  purposes  are,  properly  speaking, 
neither  local  nor  special. ' '  There  must  be  something  more  than  a 
mere  designation  of  the  subjects  of  a  class.  "The  characteristics 
which  serve  as  the  basis  of  classification  must  be  of  such  a  nature 
as  to  mark  the  objects  so  designated  as  peculiarly  requiring  exclu- 
sive legislation.  There  must  be  substantial  distinction,  having 
reference  to  the  subject-matter  of  the  proposed  legislation,  be- 
tween the  objects  or  places  embraced  in  such  legislation  and  the 
objects  or  places  excluded."  51  The  following  are  illustrations  of 
cases  in  which  the  basis  of  classification  was  improper :  Counties 

«  State  v.  Cooley,  56  Minn.  540 ;  Phila.    Traction   Co.,    152    Pa.    St. 

In  re  Ruan,  132  Pa.  St.  257,  7  L.  153,  25  Atl.  517;  Comm.  v.  Moir, 

R.  A.  193 ;  Van  Riper  v.  Parsons,  199  Pa.  St.  534,  49  Atl.  351,  85  Am. 

40  N.  J.  L.  123;  Rutgers  v.  New  St.  801;  Los  Angeles  v.  Teed,  112 

Brunswick,  42  N.  J.  L.  51;  State  Cal.  319,  44  Pac.  580. 

v.  Trenton,  42  N.  J.  L.  486 ;  State  49  Edmonds    v.    Herbrandson,    2 

v.  Board  of  Freeholders,  52  N.  J.  N.  D.  270,  14  L.  R.  A.  725;  State 

L.   512,   19   Atl.  972;   Pritchett  v.  v.  Cooley,  56  Minn.  540. 

Stanislaus  Co.,  73  Cal.  310 ;  State  BO  Ayar's  Appeal,  122  Pa.  St.  266, 

v.  Berka,  20  Neb.  375,  30  N.  W.  2  L.  R.  A.  577.   But  this  should  not 

267 ;  State  v.  Spaude,  37  Minn.  322,  be  accepted  as   meaning  that  the 

34   N.   W.   164 ;   Edmonds  v.   Her-  courts  may  judge  whether  there  is 

brandson,  2  N.  D.  270,  50  N.  W.  any  necessity  or  need  of  classifica- 

970;   Wheeler  v.   Philadelphia,   77  tion;  it  is  sufficient  if  the  basis  of 

Pa.  St.  338;  Kilgore  v.  Magee,  85  classification  has  relation  to  some 

Pa.   St.  401;  City  of  Scranton  v.  legitimate  purpose  of  legislation; 

Whyte,    148   Pa.    St.   419,   23   Atl.  and  that  is  the  only  point  for  the 

1043;    Commonwealth    v.    Macfer-  judiciary  to  decide, 

ron,  152  Pa.  St.  244,  25  Atl.  557 ;  si  state  v.  Hammer,  42  N.  J.  L. 

Appeal  of  Ayars,  122  Pa.  St.  266.  435;   Wheeler  v.   Philadelphia,  77 

"Legislation  which  applies  to  all  Pa.  St.  338 ;  Ayar's  Appeal,  122  Pa. 

members  of  a  class  is  not  local  or  St.  266 ;  Long  Branch  v.  Sloane,  49 

special,   but   general."     Reeves  v.  N.  J.  L.  356. 


292 


PUBLIC   CORPORATIONS. 


[§290 


having  a  population  of  sixty  thousand  in  which  the  fees  allowed 
county  clerks  are  turned  over  to  the  county  should  have  an  as- 
sistant clerk  paid  by  the  county.52  Seaside  resorts  where  there 
is  taxable  property  to  the  amount  of  $100,000  embraced  within 
an  area  not  exceeding  two  square  miles  might  have  borough  gov- 
ernments.53 Seaside  resorts  governed  by  boards  of  commission- 
ers, the  purpose  being  to  take  from  a  township  committee,  and  to 
confer  upon  the  commissioners,  the  right  of  expending  the  road 
taxes.54  Cities  and  towns  then  having  race  courses  for  the  pur- 
pose of  authorizing  the  granting  of  licenses  for  maintaining  race 
courses.55  Cities  and  towns  in  which  the  streets  have  been  lighted 
by  legislative  authority.56  Counties  having  public  road  boards.57 
Townships  not  containing  an  incorporated  city  or  borough.58 
Cities  of  not  less  than  ten  thousand  inhabitants  divided  into  not 
less  than  two  nor  more  than  three  wards.59  Counties  where  the 
clerks  are  at  the  time  of  the  passage  of  the  law  paid  an  annual  sal- 
ary.60 Cities  of  more  than  fifteen  thousand  inhabitants  where 
licenses  are  not  granted  by  a  board  of  excise,  nor  by  a  court  of 
common  pleas.61  Cities  where  a  board  of  assessment  and  revision 

52  Ernst  v.  Morgan,  39  N.  J.  Eq. 
391. 

53  State  v.  Somers'  Point,  52  N. 
J.  L.  32,  18  Atl.  694,  6  L.  R.  A.  57. 
Said  Depue,  J. :  "Municipal  powers 
and  franchises,   such  as  this  act 
confers,     are    as     appropriate     to 
places   in   an   inland   situation   as 
to  those  located  on  the  seashore, 
and  are  as  suitable  to  localities  in- 
habited or  frequented  by  other  in- 
dividuals as  to  resorts  for  summer 
visitors.     *     *     *     If     taxable 
property    irrespective    of    popula- 
tion be  a  proper  classification  on 
which  to  base  a  grant  of  munici- 
pal powers  of  the  scope  of  those 
granted  by  this  act,  such  property 
presents   the   same  characteristics 
wherever    situated."      Alsbath    v. 
Philbrick,  50  N.  J.  L.  581,  15  Atl. 
Rep.  579. 

54  Ross  v.  Winsor,  48  N.   J.   L. 
95. 

55  State  v.  Elizabeth,  56  N.  J.  L. 
71,  23  L.  R.  A.  525. 


66  Van  Giesen  v.  Bloomfleld,  47 
N.  J.  L.  442,  2  Atl.  249. 

67  Lodi  Township  v.  State,  51  N. 
J.  L.  402,  18  Atl.  749,  6  L.  R.  A.  56. 

ss  Dobbins  v.  Northampton,  50 
N.  J.  L.  496,  14  Atl.  587.  The  court 
said :  "The  classification  on  which 
this  act  rests  is  a  classification  set- 
ting apart  townships  not  having  an 
incorporated  city  or  borough  with- 
in the  township  bounds  from  the 
other  townships  in  this  State.  The 
subject  of  the  legislation — grading, 
making  and  working  roads — is  one 
that  is  common  to  all  townships  of 
this  state  as  well  as  to  the  town- 
ships set  apart  for  this  scheme  of 
legislation." 

59  Randolph  v.  Wood,  49  N.  J. 
L.  85. 

GO  Gibbs  v.  Morgan,  39  N.  J.  Eq. 
126. 

ei  Closson  v.  Trenton,  48  N.  J.  L. 
438. 


§291] 


CONSTITUTIONAL  LIMITATIONS. 


293 


of  taxes  is  in  existence.62  Counties  of  more  than  sixty  thousand 
inhabitants  in  which  there  shall  be  any  city  of  more  than  eight 
thousand  inhabitants  situated  twenty-seven  miles  from  the  county 
seat.63 

§  291.  Class  containing  but  one  member. — The  basis  of  clas- 
sification must  be  characteristics  and  not  numbers.  There  may 
be  a  public  corporation  in  the  state  with  such  characteristics  as 
to  effectually  distinguish  it  from  all  others.  The  fact  that  an 
act  at  the  time  of  its  passage  affects  but  one  corporation  does  not 
make  it  a  special  law,  if  there  is  nothing  to  prevent  other  cor- 
porations from  becoming  members  of  the  class  when  they  acquire 
the  necessary  population  or  comply  with  the  other  conditions.64 


ea  Hammer  v.  State,  44  N.  J.  L. 
667. 

03  Van  Giesen  v.  Bloomfield,  47 
N.  J.  L.  442;  Freeholders  of  Hud- 
son v.  Buck,  51  N.  J.  L.  155 ;  State 
v.  Wood,  49  N.  J.  L.  85,  7  Atl.  286 ; 
City  of  New  Brunswick  v.  Fitzger- 
ald, 48  N.  J.  L.  457,  8  Atl.  729; 
State  v.  Simon,  53  N.  J.  L.  550,  22 
Atl.  120;  Turner  v.  Fish,  19  Nev. 
295 ;  County  of  San  Luis  Obispo  v. 
Graves,  84  Cal.  71;  Pratt  v. 
Browne,  135  Cal.  649,  67  Pac.  1082. 

e*  State  v.  Toledo,  48  Ohio  St. 
112,  11  L.  R.  A.  729;  Govern  v. 
State,  47  N.  J.  L.  368,  48  N.  J.  L. 
612,  9  Atl.  577 ;  Ex  parte  Wells,  21 
Fla.  280;  State  v.  Donovan,  20 
Nev.  75,  15  Pac.  783;  State  v. 
Woodbury,  17  Nev.  337;  State  v. 
Graham,  16  Neb.  74;  Marmet  v. 
State,  45  Ohio  St.  63;  Wheeler  v. 
Philadelphia,  77  Pa.  St.  338 ;  Com- 
monwealth v.  Patton,  88  Pa.  St. 
258;  Kilgore  v.  Magee,  85  Pa.  St. 
401;  State  v.  Tolle,  71  Mo.  645; 
Ewing  v.  Hoblitzelle,  85  Mo.  64; 
Rutheford  v.  Heddens,  82  Mo.  388 ; 
Darrow  v.  People,  8  Colo.  417,  8 
Pac.  611 ;  Mclnerney  v.  Denver,  17 
Colo.  302,  29  Pac.  516.  In  Van 
Riper  v.  Parsons,  40  N.  J.  L.  123, 
20  Am.  R.  210,  the  court  said :  "The 


law  in  all  its  provisions  is  gen- 
eral, broad  enough  to  reach  every 
portion  of  the  state,  abating  legis- 
lative commissions  for  the  regula- 
tion of  municipal  affairs  wherever 
they  existed.  Such  commissions 
are  distinguished  from  other  sorts 
of  municipal  governments  by  char- 
acteristics sufficiently  marked  and 
important,  to  make  them  clearly 
a  class  by  themselves,  and,  upon 
the  whole  of  this  class,  this  law 
operates  equally  by  force  of  terms 
which  are  restricted  to  no  locality. 
A  law  so  framed  is  not  a  special  or 
local  law,  but  a  general  law,  with- 
out regard  to  the  consideration 
that,  within  the  state,  there  hap- 
pens to  be  but  one  individual  of 
the  class  or  one  place  where  it  pro- 
duces effect."  In  West  Chicago 
Park  Commissioners  v.  McMullen, 
134  111.  171,  25  N.  E.  676,  the  court 
said:  "If  it  is  true,  as  suggested, 
that  the  act  is  applicable  to  con- 
ditions existing  in  a  single  city  in 
the  State,  that  fact  does  not  neces- 
sarily render  it  local  or  special 
legislation.  It  is  general  in  its 
terms  and  applies  to  all  cities  of 
the  state  which,  at  the  time  of  its 
passage,  had  parks  under  the  con- 
trol of  park  commissioners,  or  that 


294  PUBLIC   CORPORATIONS.  [§292 

§292.  Geographical  conditions. — "Whether  geographical 
conditions  are  a  proper  basis  for  classification  depends  upon  the 
nature  of  the  legislation.  Such  distinctions  necessarily  exclude 
the  possibility  of  accession  to  the  class.  A  classification  of  coun- 
ties with  reference  to  the  number  and  geographical  location  of 
the  cities  they  contain  cannot  usually  be  sustained.65  But  for  the 
purpose  of  legislation  authorizing  the  construction  of  drives  upon 
the  beach,  a  classification  based  upon  location  upon  the  seashore 
would  be  proper.66 

§  293.  Population. — For  the  purpose  of  appropriate  legisla- 
tion, population  furnishes  such  a  distinguishing  characteristic 
as  to  render  it  a  proper  basis  for  classification.  The  needs  of  a 
great  city  are  different  from  those  of  a  small  city  or  village. 
The  organization  of  local  government  and  the  management  of 
municipal  affairs  are  unlike.  Mere  size,  as  measured  by  the  num- 
ber of  inhabitants,  necessarily  creates  conditions  which  call  for 
different  kinds  of  legislation.  Hence,  population  has  been  uni- 
versally recognized  as  a  proper  basis  for  the  classification  of  pub- 
lic corporations.  The  cases  supporting  this  are  very  numerous.67 

§294.  Illustrations. — The  following  acts  have  been  held 
constitutional :  An  act  providing  that  in  cities  having  a  popula- 
tion of  less  than  twelve  thousand  the  term  of  office  of  councilman 
should  be  for  as  many  years  as  there  are  councilmen  in  each 

might,  at  any  time  thereafter,  so  Hammer,  42  N.  J.  L.  440,  it  was 

have  parks."     The  decision  in  De-  said,  by  way  of  illustration,  that 

vine  v.  Cook  County,  84  111.  590,  "a  sample  of  the  other  or  legiti- 

was  controlled  not  by  the  fact  that  mate  kind  would  be  signified  in  a 

it  could  apply  to  but  one  city  in  law  that  should  give  to  all  cities 

the  state,  but  that  it  was  so  lim-  in  the  state  situated  on  tide-water 

ited  in  duration  as  to  convince  the  the  privileges  of  using  such  water 

court   that  it   was   physically  im-  in  connection  with  their  sewers." 

possible  for  any  other  city  to  come  Contrast  Ross  v.  Winsor,  48  N.  J. 

within  the  class  during  the  exist-  L.  95. 

ence  of  the  law."     But  see  State        ^  In    re    Passaic,    54   N.    J.    L. 

v.  Jones,  66  Ohio  St.  453,  64  N.  E.  156,  23  Atl.  517 ;   Welker  v.   Pot- 

424 ;  State  v.  Beacom,  66  Ohio  St  ter,  18  Ohio  St.  85.    See  Weinman 

491,  64  N.  E.  427.  v.   Pass.   R.   Co.,  118   Pa.   St.  192. 

es  Scowden's  Appeal,  96  Pa.  St  The  court  will  take  judicial  notice 

422.  of  what  the  population  of  a  coun- 

«6  State  v.  Wright,  54  N.  J.  L.  ty  was  according  to  the  last  cen- 

130,  23  Atl.  117 ;  Anderson  v.  Tren-  sus.     Worcester  National  Bank  v. 

ton,  42  N.  J.  L.  486.     In  State  v.  Cheney,  94  111.  430. 


§295]  CONSTITUTIONAL  LIMITATIONS.  295 

ward.68  An  act  providing  for  a  police  court  in  all  cities  of  the 
second  class  that  contain  a  population  of  not  less  than  fifty  thou- 
sand or  more  than  one  hundred  thousand.69  An  act  fixing  fees 
and  salaries  of  county  officers  in  counties  having  a  designated 
population.70  An  act  regulating  the  construction  of  water- works 
and  streets  in  cities  having  a  certain  designated  population.71 
An  act  prescribing  a  sewerage  system  in  cities  containing  over 
thirty  thousand  and  under  fifty  thousand  inhabitants.72  An  act 
prescribing  the  number  of  school  directors  ''in  all  cities  of  this 
state  now  having  or  hereafter  attaining  a  population  of  over  three 
hundred  thousand  inhabitants."73  An  act  requiring  the  judges 
of  the  circuit  court  to  let  contracts  for  publishing  judicial  notices 
in  cities  having  over  one  hundred  thousand  inhabitants.74  But 
population  is  not  a  proper  basis  of  classification  for  legislation 
authorizing  the  issue  of  bonds  to  pay  a  floating  debt,  as  the  object 
of  the  law  has  no  natural  relation  to  the  basis  of  classification 
adopted.75 

§295.  Possible  accession  to  a  class. — Where  the  classifica- 
tion is  based  upon  such  conditions  and  facts  that  other  corpora- 
tions of  like  nature  are  excluded  from  ever  coming  within  the 
class,  it  is  necessarily  arbitrary,  and  legislation  based  upon  it  is 
not  general.76  Thus,  an  act  applying  only  to  counties  where  there 

es  Randolph  v.  Wood,  49  N.  J.  L.  the  supervision  and  control  of  the 

85.  streets   and   of   the   water   supply 

es  A  difference  in  population  re-  may   well   be,    as   it   usually   has 

quires  different  police  regulations,  been,   left  in   the  hands   of   those 

Matheson  v.  Caminade,  55  N.  J.  L.  intrusted   to   administer   generally 

4 ;  People  v.  Henshaw,  76  Cal.  436,  its  affairs ;  but  all  experience  has 

18  Pac.  413;  (Probate  Courts  under  shown  that  such  matters  in  large 

special     constitutional     provision)  cities    can    be    properly    managed 

Knickerbocker   v.   People,    102   111.  only  by  independent  boards,  duly 

218 ;  Rutgers  v.  New  Brunswick,  42  organized  for  the  purpose." 

N.  J.  L.  51.  72  Rutherford    v.    Hamilton,    97 

70  Board  v.  Leahy,  24  Kan.  54.  Mo.  543,  11  S.  W.  249. 

71  Warner  v.  Hoagland,  51  N.  J.  73  State  v.  Miller,  100  Mo.  439, 
L.  62,  16  Atl.  166.    There  is  a  real  13   S.   W.   677 ;    State  v.   Macklin 
and    essential    difference    between  (Mo.),  13  S.  W.  Rep.  680. 

the  methods  required  in  the  man-  74  state  v.  Tolle,  71  Mo.  645. 

agemeut  of  public  works  in  large  75  Anderson  v.  Trenton,  42  N.  J. 

and  small   cities ;   and  population,  L.  486. 

hence,  becomes  a  proper  basis  for  76  Commonwealth   v.   Patton,   88 

classification.     As   said    by    Chief  Pa.  St.  258 ;  Rutgers  v.  New  Bruns- 

Justice  Beasley,  In  re  Haynes,  54  wick,  42  N.   J.   L.  51;   Nichols  v. 

N.  J.  L.  6,  at  28 :  "In  a  small  city  Walter,    37   Minn.    264 ;    State   v. 


296 


PUBLIC   CORPORATIONS. 


[§295 


were  cast  more  than  one  thousand  one  hundred  and  fifty  votes  and 
less  than  one  thousand  three  hundred  and  fifty  votes  at  a  speci- 
fied election  is  invalid.77  So  an  act  granting  courts  power  to 
grant  licenses  to  inns  and  taverns  in  cities  having  a  designated 
population  by  the  census  of  1875.78  So  an  act  regulating  the 
relocation  of  county  seats  in  all  counties  wherein  at  the  date  of 
the  act  the  court-house  and  jail  was  not  worth  a  designated 
amount  of  money.79  So  an  act  applying  to  cities  in  which  a 
German  newspaper  had  been  published  for  three  years  before  its 
passage,  but  not  applying  to  cities  which  should  thereafter  come 
within  the  qualification.80  In  each  of  these  cases  the  classification 
was  arbitrary,  and  it  was  impossible  in  the  nature  of  things  that 
there  should  be  any  accessions  to  the  class.  The  same  difficulty 
may  arise  when  the  life  of  a  statute  is  made  so  short  as  to  render 
it  impossible  for  any  other  city  to  acquire  the  necessary  popula- 
tion; and  in  such  a  case  the  court  will  take  judicial  notice  of 
the  fact  that  no  city  can  possibly  grow  so  rapidly.81 


Mitchell,  31  Ohio  St.  592;  State 
v.  Pugh,  43  Ohio  St.  98;  State 
v.  Anderson,  44  Ohio  St.  247; 
State  v.  Ellet,  47  Ohio  St.  90,  23 
N.  E.  931 ;  State  v.  Smith,  48  Ohio 
St.  211,  26  N.  E.  1069 ;  Woodard  v. 
Brien,  14  Lea  (Tenn.),  520;  Weav- 
er v.  Davidson  Co.,  104  Tenn.  315, 
59  S.  W.  1105 ;  Malone  v.  Williams, 
118  Tenn.  390,  103  S.  W.  798.  See 
State  v.  Herrmann,  75  Mo.  340. 

77  State  v.  Boyd,  19  Nev.  43. 

78Zeigler  v.  Gaddis,  44  N.  J.  L. 
363. 

79  Edmonds  v.  Herbrandson,  2  N. 
D.  270,  50  N.  W.  970;  Adams  v. 
Smith,  6  Dak.  94.  The  act  under 
consideration  in  State  v.  Hammer, 
42  N.  J.  L.  435,  applied  to  any  city 
"where  a  board  of  assessment  and 
revision  of  taxes  now  exists,"  and 
the  court  said :  "The  result,  there- 
fore, is  that  the  act  was  intended 
to  apply  to  those  two  cities  alone, 
and  the  legal  effect  of  the  law  as 
now  constituted  is  the  same  as 
though  it  had  in  express  terms  de- 


clared that  it  was  not  to  be  opera- 
tive through  the  state  at  large,  But 
only  in  the  cities  of  Elizabeth  and 
Newark." 

so  State  v.  Trenton,  54  N.  J.  L. 
444,  24  Atl.  478. 

si  In  Devine  v.  Cook  Co.,  84  111. 
590,  in  construing  an  act  which,  by 
its  terms,  applied  only  to  counties 
having  a  population  of  over  one 
hundred  thousand  inhabitants,  and 
which  expired  within  six  years 
from  the  date  of  its  passage,  the 
court  said  that  it  would  take  ju- 
dicial notice  of  the  fact  that  Cook 
County  was  the  only  county  in 
the  state  containing  over  one  hun- 
dred thousand  inhabitants,  and 
that  it  could  not  be  expected,  "by 
any  ordinary  influx  of  population, 
that  any  other  county  will  have 
that  population  within  the  brief 
period  fixed  for  the  duration  of 
this  law,  viz.,  within  a  period  of 
six  years  from  the  time  the  act 
should  take  effect.  *  *  *  The 
court  will  take  judicial  notice,  not 


§  296]  CONSTITUTIONAL  LIMITATIONS.  297 

§296.  Legislation  regulating  the  "business,"  "affairs" 
and  "internal  affairs"  of  corporations. — In  some  states  we  find 
a  provision  that  the  legislature  shall  pass  no  local  or  special  law 
regulating  the  business,  affairs  or  internal  affairs  of  public  cor- 
porations.82 Various  constructions  have  been  given  these  terms. 
In  Indiana  an  act  which  created  a  court  for  a  particular  county 
was  held  not  to  regulate  county  business.83  In  Pennsylvania  an 
act  which  authorized  the  holding  of  special  sessions  of  the  courts 
in  a  certain  county  in  a  place  other  than  the  county  seat  was 
held  invalid  as  an  attempt  to  regulate  county  business.84  And 
subsequently,  after  the  word  "affairs"  had  been  substituted  for 
the  word  "business"  in  the  constitution,  it  was  held  that  an  act 
to  ascertain  and  appoint  the  fees  to  be  received  by  certain  county 
officers  regulated  *the  affairs  of  such  counties.85  So  an  act  for 
regulating  and  maintaining  fences  and  providing  for  a  county 
election  to  determine  the  adoption  or  rejection  of  a  repealing  act 
was  held  invalid  for  the  same  reason.80 

These  provisions  do  not  limit  the  power  of  the  legislature  to 
create  a  new  corporation  or  to  repeal  the  charter  of  an  existing 
one,  thus  leaving  no  internal  affairs  to  be  regulated,  but  to  be 
valid  the  act  must  be  limited  to  the  mere  creation  of  a  new  divi- 


only  that  no  other  county  in  the  ten  days  after  its  taking  effect,  and 

state  except  Cook  County,  had  one  there  being  but  three  cities  which 

hundred  thousand  inhabitants,  but  could   possibly   possess   the   neces- 

also  that,  without  some  supernat-  sary  qualifications  within  the  time, 

ural  interposition,  no  other  county  all  others  being  forever  excluded, 

in  the  state  can  have  one  hundred  was  held  special.     But  the  mere 

thousand    inhabitants    until    after  fact  that  an  act  is  limited  in  the 

July  1,  1879.     But  it  seems  to  me  time  of  its  duration  does  not  neces- 

it  is  going  too  far  to  hold  that  the  sarily  make  it  special.     People  v. 

mere  fact  that  a  statute  is  appli-  Wright,  70  111.  388. 

cable  only  to  counties  having  one  82  See  Pell  v.  Newark,  40  N.  J. 

hundred  thousand  inhabitants  ren-  L.  71;  Freeholders  v.  Buck,  51  N. 

ders  it  a  local  law.    In  the  course  J.  L.  155. 

of  time  several  counties  may  have  83  Eitel   v.    State,   33   Ind.   201; 

that  number.     A  law  intended  to  Stevens  v.  Anderson,  145  Ind.  304, 

be  perpetual  may  not,  in  my  judg-  44  N.  E.  460. 

ment,  be  subject  to  objection,  al-  8*  Scowden's  Appeal,  96  Pa.  St. 

though  thus  limited."     In  Topeka  422. 

v.    Gillett,    32    Kan.    431,    an    act  as  Morrison  v.  Bachert,  112  Pa. 

which  excluded  all  cities  from  its  St.  322. 

operation  which  failed  to  take  ad-  «« Frost   v.   Cherry,  122  Pa.   St. 

vantage   of   its   provisions   within  417. 


298  PUBLIC   CORPORATIONS.  [  §  296 

sion  or  the  alteration  of  an  existing  one.  If  the  act  is  single  and 
a  new  body  finds  the  rules  for  its  internal  government  in  some 
general  law,  it  is  unobjectionable;  but  if  the  act  of  creation  or 
alteration  includes  provisions  looking  to  the  regulation  or  gov- 
ernment of  the  newly-created  or  altered  district,  it  is  an  attempt 
to  regulate  the  internal  affairs  of  such  district,  and  is  invalid 
unless  general.87  While  a  corporation  may  thus  be  extinguished 
by  a  special  law,  it  cannot  be  taken  apart  piecemeal,  as  by  the  re- 
peal of  a  section  here  and  there  at  different  times.  Its  affairs  would 
be  as  effectually  regulated  by  thus  depriving  it  of  certain  func- 
tions as  by  conferring  new  powers  and  attributes  upon  it.88  The 
wards  of  a  city  are  not  public  corporations,  but  are  simply  divi- 
sions created  for  the  purpose  of  better  enabling  the  municipality 
to  exercise  the  authority  with  which  it  is  vested.  Hence,  a  limita- 
tion of  the  boundaries  of  a  ward  is  a  regulation  of  the  ' '  internal 
affairs"  of  a  public  corporation.89 

An  act  prohibiting  the  removal  of  a  soldier  or  sailor  from  a 
public  office  "under  the  government  of  any  city  or  county  of 
this  state"  is  a  regulation  of  the  internal  affairs  of  counties.90 
So  an  act  designating  the  newspapers  which  shall  be  selected  as 
the  official  papers  of  cities  regulates  their  internal  affairs.91  An 
act  prescribing  the  manner  in  which  the  indebtedness  of  a  county 
shall  be  conducted  is  a  law  ' '  regulating  county  business. ' '  92  An 
act  regulating  the  assessment  and  revision  of  taxes  in  cities  regu- 
lates their  internal  affairs.93  The  same  is  true  of  an  act  taking 
from  the  township  committee  and  conferring  upon  the  borough 
commissioners  the  right  to  expend  the  road  tax  appraised  in  the 
township.94  But  a  law  providing  that  no  married  woman  holding 
any  indebtedness  of  the  state  or  the  city  may  sell  and  transfer  the 
same  as  though  unmarried  does  not  violate  a  constitutional  pro- 
vision forbidding  legislation  regulating  the  affairs  of  municipal 
corporations,  as  it  "is  simply  the  regulation  of  the  mode  and 


87  Long  Branch  v.  Sloane,  49  N.  si  State  v.  Trenton,  54  N.  J.  L. 

J.  L.  356.  444,  24  Atl.  478. 

ss  Tiger  v.  Morris,  42  N.   J.   L.  92  Youngs  v.  Hall,  9  Nev.  212. 

631.  93  Hammer  v.  State,  44  N.  J.  L. 

89  State  v.  Mayor  of  Newark,  53  667. 

N.  J.  L.  4,  20  Atl.  86.  9*  Ross  v.  Winsor,  48  N.  J.  L.  95. 

so  State  v.  O'Connor,  54  N.  J.  L. 
36,  22  Atl.  1091. 


§  297]  CONSTITUTIONAL   LIMITATIONS.  299 

transfer,  in  certain  counties,  of  property  for  the  public  con- 
venience. ' ' 95 

§297.  The  prohibition  of  special  legislation  "where  a  gen- 
eral law  can  be  made  applicable." — In  a  number  of  states  we 
find  provisions  forbidding  special  legislation  in  all  cases  where  a 
general  law  can  be  made  applicable.  Courts  have  with  prac- 
tical unanimity  held  that  it  was  for  the  legislature  to  determine 
whether  or  not  a  general  law  could  be  made  applicable  in  a  par- 
ticular case.96  But  the  evident  disposition  of  the  legislatures  to 
extend  the  exception  beyond  its  proper  limits  has  led  to  the  en- 
actment of  amendments  in  some  states  declaring  it  to  be  a  judi- 
cial question.  Thus,  the  constitution  of  Minnesota  now  pro- 
vides97  that  "whether  a  general  law  could  have  been  made  ap- 
plicable in  any  case  is  hereby  declared  to  be  a  judicial  question, 
and  as  such  shall  be  judicially  determined  without  regard  to  any 
legislative  assertion  on  that  subject."  The  language  has  gen- 
erally been  given  a  liberal  construction  for  the  purpose  of  ad- 
vancing the  legitimate  purposes  of  ordinary  legislation.  A  con- 
trary construction,  instead  of  placing  on  the  legislature  a  whole- 
some limitation,  as  is  the  manifest  intention,  would  result  in  an 

osLoftus   v.   F.   &  M.   N.   Bank,  Council,    32    Ind.    322;    State    v. 

133  Pa.  St.  97,  19  Atl.  347.  Tucker,   46   Ind.   355 ;    Vickery   v. 

se  State  v.  Hitchcock,  1  Kan.  Chase,  50  Ind.  461 ;  Kelly  v.  State, 
178;  Beach  v.  Leahy,  11  Kan.  23;  92  Ind.  236;  Johnson  v.  Wells  Co., 
Commissioners  v.  Shoemaker,  27  107  Ind.  15;  Wiley  v.  Blufton,  111 
Kan.  77;  Hughes  v.  Milligan,  42  Ind.  152;  Evansville  v.  State,  118 
Kan.  396,  22  Pac.  313;  Commis-  Ind.  426;  State  v.  Kolsem,  130 
sioners  v.  Smith,  48  Kan.  331,  29  Ind.  434,  29  N.  E.  595.  But  in  a 
Pac.  565;  Edmonds  v.  Herbrand-  few  cases  it  has  been  held  to  be 
son,  2  N.  D.  270,  50  N.  W.  a  judicial  question.  Clarke  v.  Ir- 
970 ;  State  v.  County  Court,  50  Mo.  win,  5  Nev.  Ill,  Hess  v.  Pegg,  7 
317,  11  Am.  Rep.  415 ;  State  v.  Nev.  23 ;  Evans  v.  Job,  8  Nev.  322. 
County  Court,  51  Mo.  83 ;  Hall  v.  Ex  parte  Samuel  Pritz,  19  Iowa,  30, 
Bray,  51  Mo.  288 ;  City  of  St.  Louis  following  Thomas  v.  Board  of 
v.  Shields,  62  Mo.  247 ;  Little  Rock  Commissioners,  5  Ind.  4  (subse- 
v.  Parish,  36  Ark.  166;  Davis  v.  quently  overruled  by  Gentile  v. 
Gaines,  48  Ark.  370;  Owners  of  State,  29  Ind.  409). 
Land  v.  People,  113  111.  296 ;  Wil-  »*  Constitution  of  Minnesota,  art. 
son  v.  Board,  etc.,  133  111.  443,  LV,  sec.  33,  as  amended  in  1892. 
27  N.  E.  203 ;  People  v.  McFad-  To  the  same  effect,  Constitution  of 
den,  18  Cal.  489,  15  Am.  St.  Rep.  Missouri  of  1875,  art.  IV,  sec.  53, 
66 ;  Brown  v.  City  of  Denver,  7  cl.  32,  and  the  constitutions  of  Ala- 
Colo.  305;  Carpenter  v.  People,  8  bama  and  Kansas. 
Colo.  116 ;  Longworth  v.  Common 


300  PUBLIC   CORPORATIONS.  [§  298 

absolute  prohibition  of  special  legislation.  To  give  this  pro- 
vision the  strictest  possible  construction  of  which  its  language 
will  admit  will  result  in  rendering  certain  necessary  legislation 
impossible,  or  in  causing  it  to  seek  refuge  under  the  mere  form 
of  general  legislation.  The  provision  is  not  intended  to  prohibit 
special  legislation,  but  simply  to  restrict  it  to  the  narrowest  field 
consistent  with  the  practical  work  of  legislation.  No  general 
rule  can  be  laid  down,  but  each  case  must  be  determined  by  its 
peculiar  facts  and  circumstances,  interpreted  in  the  light  of  the 
intent  which  the  people  must  be  presumed  to  have  entertained 
when  they  inserted  this  saving  provision  in  the  constitution.98 

When  a  general  law  could  have  no  other  or  greater  operation 
than  a  special  law,  so  that  no  advantage  could  be  derived  nor 
evil  avoided  by  enacting  a  law  having  a  general  instead  of  a 
special  operation,  a  special  law  is  permissible.  Hence,  where  it 
appeared  that  there  were  certain  irregularities  in  the  manner  of 
organizing  a  particular  school  district  under  the  general  law, 
and  no  other  such  case  existed  in  the  state,  it  was  held  that,  al- 
though the  legislature  had  no  power  under  the  constitution  to 
directly  create  such  a  district  by  a  special  act,  it  might  provide 
for  a  case  of  this  kind  by  a  special  law  legalizing  the  defective  or- 
ganization. Such  a  curative  act  is  a  local  or  special  law,  but  a 
general  law  could  not  be  made  applicable  to  the  case  within  the 
meaning  of  the  constitution." 

§  298.    Amendment  or  repeal  of  existing  special  charters. — 

Constitutional  provisions  prohibiting  special  legislation  relating 
to  public  corporations  do  not  repeal  special  charters  in  force  at 
the  time  of  their  adoption.1  Thus,  such  a  charter  is  not  repealed 
by  the  adoption  of  a  provision  requiring  the  legislature  to  provide 
by  general  laws  for  the  organization  of  cities  and  towns,  and  to 

»8  in  Richman  v.  Muscatine  Co.,  °*  State  v.  Squires,  26  Iowa,  340 ; 

77  Iowa,  513,  42  N.  W.  422,  4  L.  R.  Richman  v.  Supervisors,  77  Iowa, 

A.  445,  it  was  said  that,  "except  513. 

where  it  clearly  appears  that  the  i  People  v.  Cooper,  83  111.  585 ; 

legislature  was  mistaken  in  its  be-  Guild    v.    Chicago,    82    111.    472 ; 

lief  that  a  general  law  could  not  Comm.  v.  Reynolds,  137  Pa.  389, 

be  made  applicable,"  the  courts  will  20  Atl.  1011 ;  Bitting  v.  Common- 

not    interfere.      Eckerson    v.    Des  wealth    (Pa.),    12    Atl.    29.      See 

Moines,  137  la.  452,  115  N.  W.  177.  Adams  v.  Beloit,  105  Wis.  363,  81 

See  the  earlier  Iowa  case,  Ex  parte  N.  W.  869,  47  L.  R.  A.  441. 
Pritz,  9  Iowa,  30. 


§298] 


CONSTITUTION  AX,   LIMITATIONS. 


301 


make  provision  by  general  law  whereby  any  city,  town  or  village 
already  incorporated  may  become  subject  to  the  general  law.2 
But  where  a  special  law  has  been  enacted  for  the  benefit  of  a  pub- 
lic corporation,  subject  to  adoption  or  rejection  by  the  inhabi- 
tants, it  cannot  be  accepted  by  the  corporation  after  the  adoption 
of  the  constitutional  provision.  Such  special  law  is  repealed  by  the 
constitutional  amendment.3  Where  cities  elect  to  retain  their 
special  charters  after  the  adoption  of  a  constitutional  amendment, 
it  has  been  held  that  amendments  thereto  may  be  made  without 
violating  the  constitution.4  The  weight  of  authority,  however, 
is  to  the  effect  that  this  power  of  amendment  is  simply  an  evasion 
of  the  constitutional  provision,5  and  that  under  a  proper  construc- 


zDarrow  v.  People,  8  Colo.  426, 
8  Pac.  924. 

»  Hinze  v.  People,  92  111.  406. 

*  Brown  v.  City  of  Denver,  7 
Colo.  305,  3  Pac.  455;  People  v. 
Londoner,  13  Colo.  303,  22  Pac.  764, 
6  L.  R.  A.  444;  Cunningham  v. 
Denver,  23  Colo.  18,  45  Pac.  356; 
Butler  v.  Lewiston,  11  Idaho,  393, 
83  Pac.  234;  Farnsworth  v.  Lime 
Rock  R.  Co.,  83  Me.  440,  22  Atl. 
373;  Wiley  v.  Bluffton,  111  Ind. 
152.  Citing  Longworth  v.  Evans- 
ville,  32  Ind.  322;  Evansville  v. 
Bayard,  39  Ind.  450;  Chamberlain 
v.  Evansville,  77  Ind.  542;  Eichels 
v.  Evansville  Street  Railway,  78 
Ind.  261,  41  Am.  Rep.  561;  War- 
ren v.  Evansville,  106  Ind.  104; 
Bluffton  v.  Studebaker,  106  Ind. 
129 ;  Evansville  v.  Summers,  108 
Ind.  189. 

5  Atkinson  v.  Bartholow,  4  Kan. 
124.  In  Ex  parte  Pritz,  9  Iowa, 
30,  it  was  held  that  a  constitu- 
tional provision  forbidding  local  or 
special  laws  "for  the  incorpora- 
tion of  cities  and  towns"  forbade 
the  enactment  of  special  laws  for 
the  amendment  of  acts  of  incorpo- 
ration in  existence  before  the  adop- 
tion of  the  constitution.  Said 
Wright,  C.  J. :  "In  the  interpreta- 


tion of  the  constitution  as  in  the 
interpretation  of  laws,  however, 
we  are  to  ascertain  the  meaning 
by  getting  at  the  intention  of  those 
making  the  instrument.  *  *  * 
There  can  be  no  question  but  that 
it  was  designed  to  confine  the  leg- 
islature to  general  legislation,  and 
leave  the  people  in  their  municipal 
capacity  to  organize  and  carry  on 
their  government  under  such  gen- 
eral laws.  If  this  be  so,  then  to 
say  that  the  legislature  may  not 
pass  a  law  to  incorporate  a  city, 
but  may  to  amend  an  act  of  incor- 
poration in  existence  before  the 
adoption  of  the  constitution,  or 
charters  under  the  general  law, 
would  make  this  provision  of  the 
constitution  practically  amount  to 
nothing.  For,  if  they  may  amend, 
they  may  to  the  extent  of  passing 
an  entire  new  law,  except  as  to  one 
section.  Or  they  may  at  one  ses- 
sion amend  half  the  law,  and  at 
the  next  the  other  half,  and  thus 
the  plain  and  positive  prohibition 
of  the  fundamental  law  would  be 
evaded.  By  such  a  construction 
the  evil  sought  to  be  prohibited 
would  continue,  if  possible,  in  a 
more  objectionable  form." 


302  PUBLIC   CORPORATIONS.  [§  298 

tion  the  legislature  has  neither  the  power  to  amend  6  nor  to  re- 
peal 7  pre-existing  special  charters.  Any  change  in  a  special  mu- 
nicipal charter  is  a  regulation  of  the  internal  affairs  of  a  munici- 
pality. 

e  Davis   v.   Woolnough,   9   Iowa,         7  Tiger    v.    Morris   Co.    Common 
104 ;   State  v.  Cincinnati,  20  Ohio     Pleas,  42  N.  J.  L.  631. 
St.    18;    Baker   v.    Steamboat,    14 
Iowa,  214. 


CHAPTER  XXI. 


LIABILITIES  IN  TORT. 


I.  PUBLIC  OFFICERS. 
§  299.  Liability  in  general. 

300.  Liability    of    officers    acting 

judicially. 

301.  Liability     of     recorder     of 

deeds. 

302.  Liability  of  sheriff. 

303.  Highway  officers. 

304.  Liability  of  various  officers. 
II.  PUBLIC  CORPORATIONS. 

305.  Nature  of  corporation. 

306.  Nature  of  duty. 

307.  Discretionary  powers. 

308.  Imposed    and    assumed    du- 

ties. 

309.  Liability  for  acts  of  officers 

and  employes. 

310.  Torts  in  ultra  vires  under- 

takings. 

311.  Ratification    of    ultra    vires 

acts. 

312.  Increase  of  liability  by  con- 

tract. 

313.  General  rules. 

a.    SOLELY   GOVERNMENTAL   DUTIES. 


§  314.  Definition. 

315.  Neglect  to  enact  or  enforce 

laws. 

316.  Suspension  of  ordinances. 

317.  Liability  for  acts  of  a  mob. 

318.  Acts  of  police  officers. 

319.  Prevention  of  fires. 

320.  Destruction   of   property   to 

prevent  spread  of  fire. 

321.  Acts  of  firemen. 

322.  Acts   of   board   of  health— 

Care  of  hospital. 

323.  Care  of  criminals. 

324.  Care  of  indigent. 

325.  Care  of  school  buildings. 

&.    SOLELY    CORPORATE    DUTIES. 

326.  Rule  of   liability   for   negli- 

gence. 

327.  As  owner  of  property  used 

for  purposes  of  a  private 
nature. 

328.  Illustration — Wharves. 

329.  Private  business  enterprises, 

gas  and  water. 


§  299.  Liability  in  general. — An  officer  charged  with  discre- 
tionary power  is  not  responsible  in  damages  for  the  way  in  which 
he  uses  his  discretion,  unless  it  be  shown  that  he  has  acted  ar- 
bitrarily and  in  clear  violation  of  law.1  It  is  a  general  rule  that 
an  action  for  neglect  of  an  official  duty  can  be  maintained  only 
when  the  neglected  duty  is  a  ministerial  one,  and  the  officer  has 
no  discretion  as  to  the  performance  of  it. 

"There  are,  however,  many  cases  of  powers  not  discretionary, 

i  Boutte  v.  Emmer,  43  La.  Ann.  for  arrest  without  warrant,  see 
980,  15  L.  R.  A.  63.  As  to  liability  note  in  8  L.  R.  A.  529. 


303 


304  PUBLIC   CORPORATIONS.  [§  300 

for  the  manner  of  whose  performance  there  can  be  no  responsi- 
bility to  individuals.  The  sheriff,  for  example,  is  under  no  re- 
sponsibility to  individuals  for  any  neglect  of  duty  in  respect  to 
the  execution  of  a  convict,  though  in  such  a  matter  he  is  allowed 
no  discretion.  Plainly  it  is  not  only  because  duties  are  discre- 
tionary that  officers  are  exempt  from  civil  suits  in  respect  to 
their  performance.  No  man  can  have  any  ground  for  private 
action  until  some  duty  owing  to  him  has  been  neglected.  *  * 
The  rule  of  official  responsibility  then  may  be  stated  thus:  If 
the  duty  imposed  upon  an  officer  is  a  duty  to  the  public,  a  failure 
to  perform  it  or  an  inadequate  or  erroneous  performance  is  a 
public  injury,  and  must  be  redressed,  if  at  all,  in  some  form  of 
public  prosecution.  But  if,  on  the  contrary,  the  duty  is  a  duty  to 
an  individual,  then  the  neglect  to  perform  it  properly  is  an  in- 
dividual wrong,  and  may  support  an  individual  action  for  dam- 
ages. ' ' 2  Immunity  from  private  suits  depends  not  upon  the  grade 
of  the  office  but  upon  the  nature  of  the  duty.  A  policeman,  for 
example,  is  one  of  the  lowest  in  grade  of  public  officers,  but  if, 
by  reason  of  his  neglect  of  duty,  a  breach  of  the  peace  results  and 
loss  accrues  to  an  individual,  the  latter  cannot  hold  him  liable  for 
his  neglect.  If  a  highway  commissioner  declines  to  lay  out  a  road 
which  an  individual  desires,  or  discontinues  one  which  it  is  for  his 
interest  to  have  retained,  there  is  a  damage  to  the  individual,  but 
no  wrong  to  him.  Damage  alone  does  not  constitute  a  wrong.3 
If  the  officer  fails  to  regard  sufficiently  the  interests  of  individuals 
in  his  official  actions  under  a  duty  only  to  the  public  in  general, 
it  is  a  wrong  of  which  the  state  alone  can  complain.4 

§  300.  Liability  of  officers  acting  judicially. — The  rule  that 
judicial  officers  cannot  be  held  personally  liable  for  the  improper 
or  erroneous  exercise  of  judicial  judgment  when  acting  within 
their  jurisdiction  5  shields  the  members  of  an  equalizing  board, 
or  board  of  review  of  assessments,  from  liability  for  damages 
for  corruptly  and  oppressively  increasing  the  valuation  of  certain 

2  Cooley,  Elements  of  Torts,  146 ;        s  Lange  v.  Benedict,  73  N.  Y.  12, 

Moss  v.  Cummiugs,  44  Mich.  359;  29  Am.  Rep.  80;  Yates  v.  Lansing, 

Bennett  v.  Whitney,  94  N.  Y.  302.  5  Johns.  282,  9  Johns.  395,  6  Am. 

a  Butler  v.  Kent,  19  Johns.  223,  Dec.    290,    annotated;    Mostyn    v. 

10  Am.  Dec.  219 ;  Waterer  v.  Free-  Fabrigas,  Cowp.  161,  Smith's  L.  C. 

man,  Hob.  266.  1027 ;  Jordan  v.  Hansom,  49  N.  H. 

4  Bartlett  v.  Crozier,  17  Johns.  199,  6  Am.  Rep.  508. 
449,  8  Am.  Dec,  429. 


§  301]  LIABILITIES  IN   TORT.  305 

property.6  The  same  rule  protects  inspectors  of  fruits  and  meats 
acting  in  the  interest  of  the  public  health ; 7  assessors  on  whom 
is  imposed  the  duty  of  valuing  property  for  the  purpose  of  a  levy 
of  taxes ; 8  officers  empowered  to  lay  out,  alter  and  discontinue 
highways ;  9  members  of  a  town  board  in  deciding  upon  the  allow- 
ance of  claims,10  and  all  officers  exercising  judicial  powers,  what- 
ever they  may  be  called.  The  members  of  a  board  of  street  com- 
missioners, in  determining  upon  work  and  adopting  plans  and 
specifications  therefor,  act  as  judicial  officers  and  are  amenable 
only  to  the  public  for  errors,  negligence  or  misfeasance  in  the  mat- 
ters within  their  jurisdiction.  But  if,  after  adopting  the  plans 
and  specifications,  they  undertake  to  carry  them  out  practically 
and  to  do  the  work  themselves,  employing  agents  and  servants, 
they  are  liable  to  third  persons  for  negligence  or  misfeasance, 
as  they  act  in  a  ministerial  capacity.11  The  tendency  is  toward 
abolishing  the  distinction  between  the  liability  of  judges  of  su- 
perior and  inferior  courts.  Thus,  it  is  held  that  a  justice  of  the 
peace  is  protected  from  personal  liability  for  judicial  acts  in  mis- 
judging his  jurisdiction  if  he  acts  in  good  faith.12  So  a  con- 
stable is  not  liable  for  executing  a  writ  on  a  justice's  judgment 
if  the  justice  is  not  liable.13  A  mayor  is  not  liable  for  an  er- 
roneous order  maliciously  made  if  the  making  of  such  an  order 
was  within  his  jurisdiction.14 

§  301.  Liability  of  recorder  of  deeds. — With  regard  to  cer- 
tain offices,  the  public  is  incidentally  benefited  by  the  perform- 
ance of  duties  to  individuals,  instead  of  individuals  being  in- 
directly benefited  by  the  performance  of  public  duties.  For  ex- 
ample, the  recorder  of  deeds  is  a  public  officer ;  but  in  recording 

«  Steele  v.  Dunham,  26  Wis.  393.  L.  R.  A.  506 ;  Thompson  v.  Jack- 

t  Fath  v.  Koeppel,  72  Wis.  289,  7  son,  93  Iowa,  376,  27  L.  R.  A.  92, 

Am.  St.  867.  annotated;  Bishop,  Non-Contract 

s  Weaver  v.  Devendorf,  3  Den.  Law,  §  783 ;  Brooks  v.  Morgan,  86 

(N.  Y.)  117;  Cooley  on  Taxation,  Mich.  576.  See  Bradley  v.  Fisher, 

551  et  seg.  13  Wall.  (U.  S.)  335;  Houlden  v. 

»  Sage  v.  Laurain,  19  Mich.  137.  Smith,  3  Moore,  P.  C.  C.  75 ;  Gru- 

10  Wall    v.    Trumbull,    16    Mich,  mon  v.  Raymond,  1  Conn.  40,  6  Am. 

228.  Dec.  200. 

11  Robinson  v.  Rohr,  73  Wis.  436,  is  Thompson  v.  Jackson,  93  Iowa, 
2  L.  R.  A.  366.  376,  27  L.  R.  A.  92. 

12  Austin  v.  Vrooman,  128  N.  Y.  i*  Scott   v.   Fishbate,   117  N.   C. 

229,  14  L.  R.  A.  138,  annotated;     2G5,  30  L.  R.  A.  696. 
Williamson  v.  Lacy,  86  Me.  80,  25 

20 


306  PUBLIC   CORPORATIONS.  [  §  301 

conveyances  or  notices,  and  in  furnishing  abstracts  from  the  rec- 
ord to  those  who  request  them  and  tender  the  legal  fees,  he  per- 
forms duties  directly  toward  individuals.  The  breach  of  the  duty 
is  consequently  a  wrong  to  the  individual,  and  a  right  to  private 
action  follows  as  of  course.15  By  refusing  to  record  a  conveyance 
tendered  to  him  for  that  purpose  with  the  proper  fees,  or  if,  hav- 
ing undertaken  to  record  the  instrument,  he  records  it  inaccu- 
rately, the  recorder  commits  an  actionable  wrong.  There  is  a  con- 
flict of  authority  on  the  question  as  to  who  is  entitled  to  maintain 
an  action  for  damages  resulting  from  recording  an  instrument  in- 
correctly. As  between  the  grantee  in  a  deed  incorrectly  recorded 
and  another  person  claiming  under  a  subsequent  conveyance  by 
the  same  grantor  which  has  been  recorded  while  the  first  record 
remained  uncorrected,  it  has  been  held  that  the  grantee  in  the 
first  deed  is  not  to  be  prejudiced  by  the  recorder's  error.16  So 
•under  a  statute  which  made  the  deed  operative  as  a  record  from 
the  time  it  was  delivered  by  the  grantee  for  the  purpose,  a  similar 
ruling  was  made.17  Probably,  however,  the  cost  of  the  new  record 
would  be  the  measure  of  recovery,  unless  the  erroneous  record 
stands  in  the  way  of  a  sale  by  the  grantee,  or  in  some  such  way 
works  actual  damage.  If,  however,  the  deed  were  lost  or  de- 
stroyed, the  grantee's  title  would  incur  a  double  danger,  and 
the  question  of  remote  and  proximate  cause  would  be  involved. 
But  in  many  of  the  states  by  statute  a  purchaser  is  bound  to  look 
no  farther  than  the  record,  and  he  must  suffer  whose  deed  has 
been  incorrectly  recorded.18  A  recorder  may  be  responsible  for 
recording  papers  not  entitled  to  record  if  he  is  aware  that  the 
record  is  unauthorized  and  if  it  may  cause  a  legal  injury.19  He 
is  liable  also  if  he  gives  an  erroneous  certificate,  when  it  is  his 
duty  to  give  it  and  the  person  has  a  right  to  it,  that  being  an 
official  act.  But  if  the  giving  of  the  certificate  is  not  an  official  act 
he  is  not  liable.20  And  whatever  liability  is  incurred  in  such  a 


is  Clark  v.  Miller,  54  N.  Y.  528 ;  is  Ramsey  v.  Riley,  13  Ohio,  157. 

Kieth  v.  Howard,  24  Pick.  292.  is  Van  Schaick  v.  Sigel,  60  How. 

16  Merrick  v.  Wallace,  19  111.  486.  Pr.  122 ;  Mallory  v.  Ferguson,  50 

See  Ritchie  v.   Griffiths,   1  Wash.  Kan.  685,  22  L.  R.  A.  99  and  note. 

429,  25  Pac.  431,  22  Am.  St.  155,  12  20  Mallory    v.    Ferguson,    supra; 

L.  R.  A.  384.  Frost   v.    Beekman,   1   Johns.    Ch. 

"Minis    v.    Mims,    35    Ala.    23;  288. 
Chandler  v.  Scott,  127  Ind.  226,  10 
L.  R.  A.  375, 


§  302]  LIABILITIES  IN   TORT.  307 

case  is  to  the  person  for  whom  the  certificate  is  made  and  not  to 
his  grantee.21 

§  302.  Liability  of  sheriff. — A  sheriff  in  serving  a  civil  pro- 
cess is  charged  with  duties  only  to  the  parties  to  the  proceeding. 
He  is  liable  to  the  plaintiff  22  for  refusal  or  neglect  to  serve  pro- 
cess, or  want  of  diligence  in  such  service,  or  for  neglect  or  refusal 
to  return  process,23  or  for  making  a  false  return,24  or  for  neglect 
to  pay  over  moneys  collected.25  If  the  officer  has  levied  upon 
property  he  must  keep  the  property  with  reasonable  care,  and 
his  breach  of  this  duty  affords  ground  for  an  action  on  behalf  of 
each  party  to  the  writ.26  If  the  sheriff  is  directed  to  levy  upon 
goods  of  a  person  named,  he  must  at  his  peril  ascertain  who  the 
real  defendant  is  and  make  service  upon  him.27  In  deciding  as 
to  the  identity  of  the  real  owner  he  is  not  exercising  a  judicial 
function,  and  is  liable  if  on  execution  against  one  person  he  by 
mistake  seizes  the  goods  of  another.  A  sheriff  is  generally  re- 
sponsible for  the  misfeasance  or  non-feasance  of  his  deputies. 
The  deputy,  however,  is  not  such  a  private  agent  as  to  make  the 
sheriff  responsible  when  the  deputy  is  employed  to  do  something 
because  of  his  office  which  the  law  does  not  require  the  sheriff 

21  See  Satterfield  v.  Malone,  35  v.    Slawson,    44    Mich.    127 ;    Par- 
Fed.  Rep.  445,  1  L.  R.  A.  35.    For  rott  v.  Shaubhut,  5  Minn.  331 ;  Ter- 
rulings    on    this    point   under   the  rell   v.   Andrew  Co.,   44   Mo.   309; 
statutes   of   the   respective   states  Converse  v.  Porter,  45  N.  H.  399; 
see  the  following  cases:  Mims  v.  Musser  v.  Hyde,  2  W.  &  S.  314; 
Mims,  35  Ala.  23 ;  Fouche  v.  Swain,  Shelle  v.  Bryden,  114  Pa.  St.  147 ; 
80  Ala.  153 ;  Oats  v.  Walls,  28  Ark.  Throckmorton    v.    Price,    28    Tex. 
244;    Myers    v.    Spooner,    55    Cal.  609;  Sawyer  v.  Adams,  8  Vt.  172; 
262 ;  Weese  v.  Barker,  7  Colo.  181 ;  Bigelow    v.    Topliff ,    25    Vt.    282 ; 
Hine    v.    Robbins,    8    Conn.    347 ;  Shove  v.  Larsen,  22  Wis.  142 ;  Lorn- 
Shepherd    v.    Burkhalter,    13    Ga.  bard  v.   Culbertson,   59   Wis.   433. 
447;  Benson  v.  Green,  80  Ga.  230;  See   Ritchie   v.    Griffith,    1   Wash. 
Cook  v.  Hall,  6  111.  579 ;  Worces-  429,  12  L.  R.  A.  384,  and  note, 
ter  Nat.  Bank  v.  Cheeney,  87  111.  22  Howe  v.  White,  49  Cal.  658. 
602 ;    Gilchrist   v.   Gough,   63   Ind.  23  state  v.  Schar,  50  Mo.  393. 
588 ;  Miller  v.  Bradford,  12  Iowa,  2*  state  v.  Finn,  87  Mo.  310. 
19 ;  Miller  v.  Ware,  31  Iowa,  524 ;  25  Norton   v.   Nye,   56   Me.   211 ; 
Poplin   v.   Mundell,   27  Kan.  159;  Nash  v.  Muldoon,  16  Nev.  404. 
Payne  v.  Pavey,  29  La.  Ann.  116;  26  Abbott  v.  Kimball,  19  Vt.  551, 
Lewis  v.  Koltz,  39  La.  Ann.  259;  47  Am.  Dec.  708. 
Handley  v.  Howe,  22  Me.  562 ;  Hill  27  Screws  v.  Watson,  48  Ala.  628. 
v.  McNichol,  76  Me.  315;  Bryden  See,  also,  Thomas  v.  Markman,  4? 
v.  Campbell,  40  Md.  338 ;  Gillespie  Neb.  843,  62  N.  W.  206. 
V.  Rogers,  146  Mass.  612;  Sinclair 


303  PUBLIC   CORPORATIONS.  [  §  303 

officially  to  perform,  as  in  serving  a  distress  warrant 28  or  selling 
the  property  on  foreclosure  of  a  chattel  mortgage.29  The  law 
imposes  no  duty  on  a  deputy  as  such.  For  omissions  to  act, 
therefore,  he  is  not  responsible,  not  being  bound  to  act.  For 
tortious  acts  of  a  deputy  under  color  of  the  officer's  authority, 
not  only  the  deputy,  but  the  officer  himself,  is  liable.  "When- 
ever the  plaintiff  must  state  the  official  character  of  the  party 
sued,  as  one  of  the  allegations  on  which  the  defendant's  liability 
depends,  the  principal  only  is  responsible.  But  where  the  corpus 
delicti  is  a  thing  of  active  wrong  and  a  trespass  per  se  unless 
justified,  then  the  hand  that  does  or  procures  the  act  is  liable. ' ' 30 
But  in  cases  where  deputy-sheriffs  are  appointed  by  the  sheriff 
subject  to  the  approval  of  the  judge  of  the  circuit  court,  his 
power  of  appointment  comes  from  the  state  and  his  authority  is 
derived  from  the  law.31 

§303.  Highway  officers. — If  a  ministerial  officer  has  the 
funds  at  his  command  with  which  to  discharge  the  duty  in- 
cumbent upon  him,  he  is  responsible  to  parties  injured  by  his 
neglect.  But  he  cannot  be  in  fault  unless  the  funds  are  provided 
for  the  purpose,  or  unless  by  virtue  of  his  office  he  may  raise  the 
necessary  means  by  levying  a  tax  or  in  some  other  mode.  Thus, 
commissioners  having  charge  of  the  cutting  and  keeping  open  of 
public  drains  will  be  liable,  after  the  drains  are  once  cut,  if  they 
suffer  them  to  become  obstructed  to  the  injury  of  neighboring 
lands  when  they  have  the  means  at  their  command  to  keep  them 
open.32  The  decisions  are  conflicting  as  to  the  liability  to  in- 
dividuals of  an  officer  who  has  charge  of  the  duty  of  making  and 
repairing  highways  and  public  bridges.  In  an  early  New  York 
case,  where  an  individual,  injured  in  consequence  of  a  bridge 
being  out  of  repair,  had  brought  suit  against  the  overseer  of  high- 
ways, it  was  held  that  the  overseer 's  duty  was  owing  to  the  public 
and  not  to  individuals.33  This  decision  has  been  followed  in 
several  states,34  but  by  later  decisions  in  New  York  highway 

zsMoulton  v.  Moulton,  5  Barb.        32  child  v.  Boston,  4  Allen,  41, 

286.  81  Am.  Dec.  680. 

29  Door  v.  Mickley,  16  Minn.  20         33  Bartlett  v.  Crozier,  17  Johns. 

(Gil.  8).  449,  8  Am.  Dec.  428. 

s°  Coltraine  v.  McCaine,  3  Dev.         34  See  Dunlap  v.  Knapp,  14  Ohio 

Law  (N.  C.),  308,  24  Am.  Dec.  256.  St.  64;  McConnell  v.  Dewey,  5  Neb. 

si  State  v.  Bus,  125  Mo.  335,  33  385 ;  Lynn  v.  Adams,  2  Ind.  143. 
L.  R.  A.  616. 


§  304]  LIABILITIES   IN   TORT.  309 

commissioners  are  held  responsible  to  individuals  for  failure  to 
keep  the  public  ways  in  repair  if  they  have  the  means  of  repair- 
ing them.  ' '  Defective  bridges  are  dangerous, ' '  said  the  court  in 
an  important  case,  "and  travelers  generally  have  no  means  of 
knowing  whether  they  are  safe  or  not.  They  have  to  rely  upon 
the  fidelity  and  vigilance  of  the  highway  officers,  who  are  the  only 
persons  whose  duty  it  is  to  see  that  the  bridges  are  in  repair. ' '  35 
A  similar  liability  exists  in  other  states  by  statute.36 

§304.  Liability  of  various  officers. — The  members  of  a 
board  of  health  are  personally  liable  in  damages  to  a  person  af- 
flicted with  a  contagious  disease  for  injury  occasioned  by  the  neg- 
ligent manner  of  removing  him,  and  are  so  liable  without  proof  of 
malice  or  of  gross  negligence.37  A  supervisor  is  personally  liable 
for  damages  resulting  from  his  neglect  to  report  a  claim  to  a 
county  board  after  allowance.38  A  clerk  of  court  is  liable  for 
damages  occasioned  by  his  neglect  to  put  a  case  on  the  docket,39 
and  for  approving  an  appeal  bond  with  a  penalty  less  than  that 
required  by  law,40  or  for  failing  to  enter  a  judgment  properly.41 
The  purchasers  of  meat  who  rely  upon  the  inspection  of  a  public 
inspector  may  maintain  an  action  against  the  inspector  for  dam- 
ages caused  by  the  neglect  of  his  duty.42 

II.    PUBLIC  CORPORATIONS. 

§305.  Nature  of  corporation. — In  considering  the  liability 
of  public  corporations  for  torts  the  distinction  between  municipal 
corporations  proper,  such  as  chartered  cities,  and  public  quasi- 
corporations,  such  as  counties  and  townships,  is  of  great  impor- 
tance. The  question  of  liability  in  many  cases  depends  upon  the 

35  Hover  v.  Barkhoof ,  44  N.  Y.    in  an  unsafe  and  unprotected  tent, 
113,  125.  whereby  they  were  so  exposed  that 

36  See   Hathaway   v.    Hinton,    1    death  ensued. 

Jones  (N.  C.) ,  243 ;  County  Com'rs  ss  Clark  v.  Miller,  54  N.  Y.  528. 

v.  Gibson,  36  Md.  229.  39  Brown  v   Lester,  21  Miss.  (13 

37  in  Aaron  v.   Broils,   64  Tex.  S.  &  M.)  392.    This,  however,  was 
316,  53  Am.  St.  Rep.  764,  it  was  an  action  on  his  bond. 

held    that    while    the    board    of  40  Billings    v.    Lafferty,    31    111. 

health,  mayor  and  marshal  of  a  318;   Hubbard  v.   Switzer,  47  la. 

city  might  remove  from  the  city  681;  Topping  v.  Windley,  99  N.  C. 

persons    afflicted    with   small-pox,  4,  5  S.  B.  14. 

they  were  liable  for  negligence  in  *i  Douglass  v.  Yallup,  Burr.  722. 

doing  so,  and  for  removing  them  in  *2  Hayes  v.  Porter,  22  Me.  371 ; 

stormy  weather  and  putting  them  Governor  v.  Dodd,  81  111.  163. 


310  PUBLIC   CORPORATIONS.  [§  306 

nature  of  the  corporation,  although  the  real  basis  for  the  distinc- 
tion between  the  liability  of  municipal  corporations  and  counties 
and  towns  is  found  in  the  nature  of  the  duties  imposed  upon  them. 

§  306.  Nature  of  duty. — The  distinction  between  powers  of 
state  government,  and  those  exercised  solely  for  corporate  in- 
terests has  been  often  referred  to  in  the  course  of  this  work.43 
A  municipal  corporation  exercises  both  of  these  classes  of  powers, 
while  public  <^<m-corporations  exercise  governmental  powers 
only.  As  a  general  rule  there  is  no  liability  under  the  rule  re- 
spondent superior  for  negligence  in  the  exercise  of  powers  of 
state  government.44  Hence  the  liability  of  a  municipal  corpora- 
tion in  a  particular  case  may  depend  upon  the  nature  of  the 
power  being  exercised.  By  many  authorities,  it  will  be  held  liable 
for  negligence  in  the  exercise  of  its  strictly  corporate  powers,  but 
not  liable  for  the  same  injuries  if  they  occur  in  the  course  of  per- 
forming duties  of  state  government.  But  the  liability  in  a  par- 
ticular case  may  be  affected  by  the  manner  in  which  the  duty  is 
imposed  and  the  means  of  performance.  Careful  attention  must 
in  all  cases  be  given  the  statutes  of  the  state,  as  the  common-law 
rules  of  liability  to  which  reference  is  made  in  this  chapter  have 
in  many  states  been  very  materially  modified. 

§307.  Discretionary  powers. — A  municipal  corporation  is 
not  liable  for  injuries  caused  by  the  manner  in  which  it  exercises 
a  discretion,  through  its  proper  officers.  Its  action  or  inaction 
in  such  a  case  is  final,  although  it  may  appear  that  it  seriously  mis- 
judged the  public  interest.  Consequently  a  municipal  corpora- 
tion cannot  be  held  liable  to  private  action  for  the  non-exercise 
of  powers  which  are  not  made  imperative  upon  it  by  statute, 


43  See,  also,  Lloyd  v.  New  York  of  these,  is  no  more  liable  to  pri- 
5  N.  Y.  369,  55  Am.  Dec.  347 ;  Bai-  vate  action  than  is  the  state.    This 
ley  v.  New  York,  3  Hill   (N.  Y.),  principle  is   equally   applicable   to 
531,  38  Am.  Dec.  669.  municipal   corporations.     The   na- 

44  "It  may  be  stated  as  an  abso-  ture  of  the  power,  whether  it  be 
lute  rule,   that  where  the  power  general  and  governmental  or  local 
exercised,  or  attempted  to  be  ex-  and  private,  is  the  test  applied  by 
ercised,  is  governmental  in  its  na-  the  courts.     Naturally,  courts  do 
ture,  the  subordinate  body  exercis-  not  agree  as  to  the  nature  of  the 
ing  it,  whether  a  municipal  corpo-  same  power  or  function."     1  An- 
ration  or  a  g«<m'-corporation,  or  a  drews,  American  Law,  §  382. 
mere  local  board  attached  to  one 


§  308]  LIABILITIES  IN  TORT. 

but  are  left  to  its  voluntary  decision.45  Illustrations  of  cases  in 
which  such  corporations  are  entitled  to  exercise  discretion  are 
found  in  the  change  of  grade  of  a  street,46  opening  and  closing 
a  street,47  making  a  crossing  at  a  particular  place,48  or  where 
reasonable  and  proper  police  regulations  are  temporarily  sus- 
pended to  the  detriment  of  individual  citizens.49 

§308.  Imposed  and  assumed  duties. — The  fact  that  a  duty 
has  been  voluntarily  assumed  by  the  municipality  under  au- 
thority of  law  is  not  conclusive  as  determining  the  question  of 
liability  resulting  from  negligence  of  its  servants  in  the  perform- 
ance of  the  duty.  Thus,  where  a  city  provides  and  maintains  a 
workhouse  solely  for  the  public  service  and  for  the  general  good 
in  providing  for  the  care  and  support  of  offenders  for  whose 
maintenance  it  was  responsible,  the  fact  that  the  city  was  not 
compelled  by  law  to  provide  such  an  establishment  and  that  it 
acted  voluntarily  does  not  affect  its  liability  for  its  acts  in  con- 
nection therewith.50 

§  309.  Liability  for  acts  of  officers  and  employes — Respon- 
deat  superior. — A  city  is  not  liable  for  damages  resulting  from 
negligence  in  the  course  of  exercising  a  delegated  power  of  sov- 
ereignty, as  an  agency  of  state  government.5 !  It  is  not  responsi- 
ble for  the  torts  of  a  public  officer  when  engaged  in  the  perform- 
ance of  a  public  governmental  duty,  nor  of  a  specific  duty  im- 
posed upon  the  officer  by  statute.  In  the  latter  case  the  officer 

« Anderson    v.    East,    117    Ind.  ticular  street  for  coasting.   Henkel 

126,  19  N.  E.  726,  2  L.  R.  A.  712  v.  Detroit,  49  Mich.  249.     See  on 

(annotated)  ;    Hines   v.   Charlotte,  the  general  principle,  Anderson  v. 

72  Mich.  278,  1  L.  R.  A.  844 ;  Lin-  East,  117  Ind.  126,  19  N.  E.  726,  2 

coin  v.  Boston,  148  Mass.  578,  3  L.  L.  R.  A.  712   (annotated). 

R.  A.  257  (annotated)  ;  McDade  v.  so  Curran   v.   Boston,   151  Mass. 

Chester,  117   Pa.   St.  414,  12  Atl.  505,  8  L.  R.  A.  243 ;  Fisher  v.  Bos- 

421,  2  Am.  St.  681.  ton,  104  Mass.  87,  6  Am.  Rep.  196. 

*«  Transportation  Co.  v.  Chicago,  See  Tindley  v.    Salem,   137  Mass. 

99  U.  S.  635.  171. 

47  Bauman  v.  Campau,  58  Mich.  si  Wood,    Master    and    Servant, 
444,  25  N.  W.  391,  24  N.  E.  781,  21  §  463.     Anderson  v.  East,  117  Ind. 
Am.  St.  465.  126,  19  N.  E.  726,  2  L.  R.  A.  712 

48  Smith  v.  Gould,  61  Wis.  31,  20  (annotated)  ;    Culver   v.    Streator, 
N.  W.  369.  130  111.  238,  6  L.  R.  A.  270   (an- 

49  See  Burford  v.  Grand  Rapids,  notated)  ;  Hafford  v.  New  Bedford, 
53  Mich.  98,  51  Am.  Rep.  105.     In  16  Gray.  297. 

this  case  the  city  designated  a  par- 


312 


PUBLIC   CORPORATIONS. 


[§309 


derives  his  authority  from  the  law  and  not  from  the  corporation, 
and  is  not  in  that  respect  the  representative  of  the  corporation.52 
The  doctrine  of  respondeat  superior  may  apply  to  acts  of  the 
agents  of  a  public  corporation  when  acting  for  the  corporation 
and  within  the  scope  of  their  authority.53 

But  the  corporation  is  not  liable  for  the  acts  of  officers  who  are 
not  under  its  control  or  engaged  in  the  performance  of  its  duties. 
The  officers  may,  in  such  cases,  be  personally  liable  for  the  negli- 
gent performance  of  ministerial  duties.  When,  however,  a  pub- 
lic officer  is  engaged  in  the  performance  of  duties  which  rest 
upon  the  corporation,  his  acts  may  bind  the  corporation  in  a  par- 
ticular case,  although  it  would  not  be  generally  liable  for  his 
negligence.  Thus,  a  city  is  not  liable  for  damages  caused  by  the 
tortious  acts  of  a  policeman,  but  it  may  be  liable  for  damages 
caused  by  a  defect  in  a  street  when  a  police  officer  has  negligently 
failed  to  report  the  defect.54  A  corporation  is  liable  neither  for 
the  acts  of  independent  boards  who  do  not  act  for  it  and  are 


52  in  Sievers  v.  San  Francisco, 
115  Cal.  648,  the  court  said :  "In  a 
learned  and  very  instructive  note 
to  Goddard  v.  Hartwell,  30  Am.  St. 
373,  Mr.  Freeman,  after  careful 
and  critical  review  and  analysis 
of  many  authorities,  deduces  and 
expresses  the  rule  of  liability  for 
the  acts  of  an  officer  of  a  munici- 
pality in  the  following  language: 
'When  an  officer  of  a  municipality 
has  no  other  authority  than  that 
intrusted  to  him  by  law,  and  he 
acts  beyond  that  authority,  and 
commits  a  tort,  whereby  a  citizen 
is  injured  either  in  person  or  prop- 
erty, the  tort  is  the  act  of  the  offi- 
cer only,  and  ordinarily  no  recov- 
ery of  damages  can  be  had,  except 
against  him.' "  It  was  therefore 
held  that  the  city  was  not  liable 
for  damages  occasioned  by  an  er- 
roneous fixing  of  a  street  grade 
eight  feet  above  the  official  grade. 
The  court  further  said :  "When  the 
injury  results  from  the  wrongful 
act  or  omission  of  an  officer 


charged  with  a  duty  prescribed 
and  limited  by  law,  the  officer 
is  not  treated  as  the  servant  or 
agent  of  the  corporation  in  the 
performance  of  these  duties  thus 
expressly  enjoined,  but  is  held  to 
be  the  servant  and  agent  of,  and 
controlled  by,  the  law,  and  for  his 
acts  the  municipality  will  not  be 
held  liable." 

53  "The  question  of  liability  on 
the  part  of  a  municipal  corpora- 
tion for  damages  arising  from  the 
negligent  or  voluntary  but  unlaw- 
ful (or  the  wilful)  acts  of  officers 
or  employees  acting  in  professed 
line  of  duty,  always  involves  the 
applicability  of  the  doctrine  re- 
spondeat superior,  and  in  cases 
where  the  individual  is  admittedly 
either  directly  or  indirectly  serv- 
ing the  corporation,  the  further 
question  as  to  the  orbit  of  duty  or 
scope  of  employment  is  involved." 
Andrews,  Am.  Law,  §  412. 

e*Kunz  v.  Troy,  104  N.  Y.  344, 
10  N.  E.  442. 


;§  309] 


LIABILITIES  IN   TOET. 


313 


not  subordinate  to  it,  nor  for  those  of  subordinate  boards  which 
exercise  governmental  power.55  Such  independent  boards  are 
not,  in  general,  held  liable  for  the  negligent  acts  of  their  ser- 
vants.56 "To  determine  whether  there  is  municipal  responsi- 
bility, the  inquiry  must  be  whether  the  department  whose  mis- 
feasance or  nonfeasance  is  complained  of  is  a  part  of  the  ma- 
chinery for  carrying  on  the  municipal  government,  and  whether 
it  was  at  the  time  engaged  in  the  discharge  of  a  duty  or  charged 
with  a  duty,  primarily  resting  upon  the  municipality."57  The 
manner  in  which  the  members  of  a  board  are  appointed  is  im- 
portant, but  not  decisive  upon  this  question.58  "In  these  cases 
the  question  is:  Was  the  offending  individual  the  agent  of  the 
city,  or  of  the  state,  or,  if  admittedly  an  officer,  was  the  act 
merely  his  act,  or  an  act  within  the  scope  of  employment;  that 
is,  was  he  serving  the  state,  if  so  the  city  is  not  the  superior;  if 
he  was  serving  the  city  nominally  were  his  services  in  the  gov- 
ernmental orbit  or  in  corporate  affairs.59 

It  is  not  easy  to  determine  when  a  municipality  is  liable  for 
the  negligence  of  a  contractor.    It  certainly  cannot  relieve  itself 


55  Bulger  v.  Eden,  82  Me.  352,  19 
Atl.  829;  Bryant  v.  St.  Paul,  33 
Minn.  289,  23  N.  W.  220. 

s«O'Leary  v.  Board  of  Commis- 
sioners, 79  Mich.  281,  44  N.  W.  608, 
19  Am.  St.  Rep.  169;  Elmore  v. 
Drainage  Commissioners,  135  111. 
269,  25  N.  E.  Rep.  1010;  Anne 
Arundel  County  v.  Diwell,  54  Md. 
350,  39  Am.  Rep.  393  (county  com- 
missioners) . 

sTEhrgott  v.  Mayor,  96  N.  Y. 
273;  Pettengill  v.  Yonkers,  116  N. 
Y.  558,  22  N.  E.  1095.  In  O'Brien 
v.  New  York,  15  N.  Y.  Supp.  520, 
it  is  held  that  under  the  statute 
the  city  is  not  liable  for  the  negli- 
gence of  aqueduct  commissioners. 
In  District  of  Columbia  v.  Wood- 
bury,  136  U.  S.  450,  the  District 
of  Columbia  was  held  liable  for  the 
negligence  of  street  commissioners 
who  were  ultimately  responsible  to 
congress.  In  Kobs  v.  Minneapolis, 
22  Minn.  159,  the  city  was  held 


liable  for  the  negligence  of  a  street 
commissioner  appointed  by  the 
common  council. 

os  District  of  Columbia  v.  Wood- 
bury,  136  U.  S.  450.  It  has  been 
held  that  the  corporation  is  liable 
when  it  appoints  the  officer  and 
the  duty  to  be  performed  is  for  the 
benefit  of  the  corporation.  New 
York  v.  Bailey,  2  Denio,  433  (engi- 
neer and  water  commissioners)  ; 
Tarney  v.  New  York,  12  Hun.  542 
(board  of  health)  ;  Walsh  v.  New 
York,  41  Hun,  299  (trustees  of 
Brooklyn  bridge).  So  where  the 
duty  is  imposed  upon  the  corpora- 
tion and  the  officers  or  department 
acts  as  the  agent.  Niven  v.  Roch- 
ester, 76  N.  Y.  619  (commissioners 
of  public  works)  ;  Barnes  v.  Dis- 
trict of  Columbia,  91  U.  S.  540 
(board  of  public  works)  ;  Ehrgott 
v.  New  York,  96  N.  Y.  264  (park 
commissioners ) . 

69  Andrews,  Am.  Law,  §  412. 


314  PUBLIC   CORPORATIONS.  [§310 

from  a  positive  duty  which  rests  upon  it  by  transferring  that  duty 
to  a  contractor.  The  corporation  must  see  that  absolute  and 
imperative  duties  which  are  imposed  upon  it  by  law  are  per- 
formed; if  it  entrusts  the  observance  of  such  a  duty  to  a  con- 
tractor and  the  contractor  fails  to  perform  it,  the  city  is  responsi- 
ble for  the  resulting  damages.60  But  when  the  negligence  relates 
to  a  matter  with  reference  to  which  the  corporation  is  under  no 
special  obligation,  the  liability  rests  upon  the  contractor  alone.61 
In  jurisdictions  where  the  statutory  duty  to  keep  streets  in  proper 
condition  is  considered  a  duty  of  general  government,  and  is  en- 
trusted to  officers  who  act  under  the  direction  of  statutes,  there 
is  no  liability  on  the  corporation  for  acts  of  negligence  of  such  an 
officer  or  of  his  subordinates  and  employes  engaged  in  the  con- 
struction of  a  street.62 

§310.  Torts  in  ultra  vires  undertakings. — The  rule  that  a 
principal  is  civilly  liable  for  the  acts  of  his  agents  when  acting 
in  the  line  of  their  employment  is  applicable  to  municipal  cor- 
porations, only  when  the  undertaking  in  which  the  act  occurs  is 
within  the  powers  of  the  corporation.63  "A  municipal  corporation 
is  liable  for  the  act  of  its  agents,  injurious  to  others,  when  the 
act  is  in  its  nature  lawful  and  authorized,  but  done  in  an  un- 

eo  Turner  v.  Newburgh,  109  N.  Y.  344,  44  N.  E.  339  (assistant  superin- 

301, 16  N.  E.  344;  Jefferson  v.  Chap-  tendent    of    streets)  ;    AlcCann    v. 

man,  127  111.  438 ;  Circleville  v.  Neu-  Waltham,  163  Mass.  344,  40  N.  E. 

ding,  41  Ohio  St.  465 ;  Hinck  v.  Mil-  20    (laborer  employed  by  superin- 

waukee,  46  Wis.  565,  32  Am.  Rep.  tendent  of  streets).    A  city  is  not 

735;  Grant  v.  Stillwater,  35  Minn,  liable  for  acts  of  its  servants  in 

242.  operating  a  passenger  elevator  in  a 

oiKuehn  v.  Milwaukee,  92  Wis.  city  hall.     Snider  v.   St.   Paul,  51 

263,    65   N.    W.    1030 ;    Harvey    v.  Minn.  466.    A  city  is  bound  to  give 

Hillsdale,    86    Mich.    330,    49    N.  its    workmen    a    reasonably    safe 

W.     Rep.     141 ;     Van     Winter     v.  place  in  which  to  work  and  is  liable 

Henry   County,   61   Iowa,   684,   17  to  them  for  damages  resulting  from 

N.  W.  94.    See,  further,  Herrington  a  failure  to  do  so,  provided  the  un- 

v.  Lansingburg,  110  N.  Y.  145,  17  N.  dertaking  be  one  in  which  the  cor- 

E.  728;  Depot  v.  Simmons,  112  Pa.  poration  would  be  liable  to  third 

St.  384.    Where  a  contractor  in  pav-  persons.     Norton  v.  New  Bedford, 

ing  a  street  unnecessarily  deposits  166  Mass.  48.    But  see,  Rhobidas  v. 

earth  upon  an  abutting  lot,  the  cor-  Concord,  70  N.  H.  90. 
poration  is  not  liable  to  the  owner         63  Smith  v.  Rochester,  76  N.  Y. 

of  the  lot.    Fuller  v.  Grand  Rapids,  506 ;  Stoddard  v.  Saratoga  Springs, 

105  Mich.  529,  63  N.  W.  530.  127  N.  Y.  261,  27  N.  E.  1030 ;  Love 

ea  Jensen  v.  Waltham,  166  Mass.  v.  Raleigh,  116  N.  C.  296,  28  L.  R. 


§310] 


LIABILITIES   IN   TORT. 


315 


lawful  manner  or  in  an  unauthorized  place,  but  is  not  liable  for 
injurious  and  tortious  acts,  which  are  in  their  nature  unlawful 
or  prohibited."04  The  principle  of  non-liability  of  public  cor- 
porations for  torts  ultra  vires  is  firmly  established,65  although  it 
is  often  explained  away  in  practice.  It  has  been  held  that  a  town 
is  not  liable  for  damages  resulting  from  building  a  dam  without 
corporate  power66  or  under  an  unconstitutional  statute.67  So 


A.  192  (fireworks  managed  by  offi- 
cers of  municipality)  ;  Moffett  v. 
Asheville,  103  N.  C.  237;  Haag  v. 
Vanderburg  County,  GO  Ind.  511; 
Elliott,  Roads  and  Streets,  p.  355; 
McCarthy  v.  Boston,  135  Mass.  197 ; 
Seele  v.  Deering,  79  Me.  343,  10 
Atl.  45. 

eiWorley  v.  Columbia,  88  Mo. 
106. 

65  The  well-known  case  of  Salt 
Lake  City  v.  Hollister,  118  U.  S. 
256,  restricts  the  doctrine  of  ultra 
vires  when  applied  to  municipal 
corporations.  It  was  there  held 
that  the  city  could  not  recover 
back  money  paid  as  a  tax  for  dis- 
tilling spirits,  although  the  act  of 
engaging  in  the  business  was  whol- 
ly ultra  vires  the  corporation.  See 
comment  on  this  case  in  Dillon, 
Mun.  Corp.,  II,  §793,  note.  The 
doctrine  is  not  consistently  applied 
and  municipal  corporations  are 
often  held  liable  for  ultra  vires 
acts.  Thus,  in  Stanley  v.  Daven- 
port, 54  Iowa,  463,  2  N.  W.  1064, 
6  N.  W.  706,  37  Am.  Rep.  216,  the 
city  was  held  liable  for  damages 
resulting  from  its  unauthorized  act 
in  allowing  a  steam  motor  to  go 
upon  a  street.  As  to  liability  when 
it  has  granted  licenses  without 
authority,  see  §  339,  infra.  As  to 
liability  on  ultra  vires  contracts, 
see  §  205,  supra. 

««In  Anthony  v.  Adams,  1  Met. 
(Mass.)  284,  the  county  commis- 
sioners ordered  a  dam  built  and  it 


was  constructed  by  the  selectmen 
without  a  vote  or  other  action  of 
the  town.  It  was  held  that  the 
town  was  not  liable  for  negligence 
in  this  case. 

67  Albany  v.  Cunliff,  2  N.  Y.  165. 
But  see  Schussler  v.  Hennepin  Co. 
67  Minn.  412,  70  N.  W.  6.  In  Board 
of  Commissioners  v.  Duprez,  87 
Ind.  509,  Mr.  Justice  Elliott  said: 
"There  is  a  fatal  defect  In  the 
complaint.  It  is  not  shown  that 
the  bridge  was  one  which  the 
county  had  authority  to  build.  It 
is  settled  that  a  public  corporation 
cannot  be  held  liable  for  injuries 
resulting  from  an  act  done  by  its 
officers  beyond  its  power  and  juris- 
diction. There  is  in  this  respect  a 
well-defined  distinction  between 
public  and  private  corporations. 
Browning  v.  Board,  44  Ind.  11 ; 
Haag  v.  Board,  60  Ind.  511,  28  Am. 
Rep.  654;  Driftwood  &  Co.  v. 
Board,  72  Ind.  226;  Cummins  v. 
City  of  Seymour,  79  Ind.  491,  41 
Am.  Rep.  226.  A  public  corpora- 
tion is  not  liable  for  injuries  caused 
by  the  unsafe  condition  of  a  bridge 
which  its  officers  had  no  authority 
to  build.  2  Dill.  Mun.  Corp.  (3d 
ed.),  §  970  (4th  ed.,  §  1017).  There 
is  nothing  showing  that  the  bridge 
formed  any  part  of  a  highway  or 
that  the  place  where  it  was  built 
was  one  where  the  county  had 
authority  to  build  a  bridge.  Where 
negligence  is  the  ground  of  an  ac- 
tion against  a  public  corporation, 


316 


PUBLIC   CORPORATIONS. 


[§310 


a  city  is  not  liable  for  the  torts  of  officers  committed  under  the 
apparent  authority  of  an  ordinance  which  the  corporation  had  no 
power  to  enact.68  But  the  corporation  is  sometimes  held  liable  for 
acts  done  by  it  under  a  claim  of  authority  which  is  afterwards 
shown  to  be  unfounded.69  A  city  is  liable  for  the  trespasses  or 
malicious  injuries  committed  by  its  agents  when  engaged  in  the 
execution  of  its  powers.70  The  city  has  no  power  to  call  a  polit- 
ical meeting,  and  one  who  is  injured  by  the  careless  discharge  of 
a  cannon  at  a  meeting  called  and  managed  by  the  city  council 
has  no  right  of  action  against  the  city.71  In  the  absence  of  ex- 
press power  a  public  corporation  has  no  right  to  expend  money 
for  public  celebrations,  and  there  is  no  liability  for  injuries  re- 
sulting from  the  explosion  of  fireworks  on  such  occasions.  It  has 
been  held  that  this  is  true  where  the  fireworks  were  exhibited 
under  a  permit  granted  by  the  municipal  authorities  under  an 
ordinance  prohibiting  anything  of  the  kind  without  such  a  per- 
mit.72 Under  New  York  decisions,  however,  when  such  exhibi- 


it  is  necessary  to  show  a  duty  and 
its  breach.  Neither  a  county  nor  a 
city  can  be  made  responsible  for 
negligence  in  maintaining  a  bridge 
or  highway  unless  there  rests  upon 
it  some  duty." 

es  Field  v.  Des  Moines,  39  Iowa, 
575,  579. 

6»  In  Thayer  v.  Boston,  19  Pick. 
(Mass.)  511,  the  court  said :  "There 
is  a  large  class  of  cases  in  which 
the  rights  of  both  the  public  and 
individuals  may  be  deeply  involved 
in  which  it  cannot  be  known  at  the 
time  the  act  is  done  whether  it  is 
lawful  or  not.  The  event  of  a  legal 
inquiry  in  a  court  of  justice  may 
show  that  it  was  unlawful.  Still  if 
it  was  not  known  and  understood 
to  be  unlawful  at  the  time;  if  it 
was  an  act  done  by  the  officers  hav- 
ing competent  authority,  either  by 
express  vote  of  the  city  govern- 
ment or  by  the  nature  of  the  duties 
and  functions  with  which  they  are 
charged  by  their  offices,  to  act  upon 
the  general  subject-matter ;  and  es- 


pecially if  the  act  was  done  with 
an  honest  view  to  obtain  for  the 
public  some  lawful  benefit  or  ad- 
vantage,— reason  and  justice  obvi- 
ously require  that  the  city,  in  its 
corporate  capacity,  should  be  liable 
to  make  good  the  damage  sustained 
by  an  individual  in  consequence  of 
the  acts  thus  done."  To  the  same 
effect  is  Schussler  v.  Hennepin  Co., 
67  Minn.  412,  70  N.  W.  6. 

70  Allen  v.  Decatur,  23  111.  372; 
Manners   v.   Haverhill,   135   Mass. 
165;  Leeds  v.  Richmond,  102  Ind. 
372. 

71  Morrison     v.     Lawrence,     98 
Mass.  219;  Tindley  v.  Salem,  137 
Mass.  171,  50  Am.  Rep.  289   (cele- 
bration of  a  holiday  under  direc- 
tion of  the  city)  ;  Ball  v.  Wood- 
bine, 61  Iowa,  83,  47  Am.  Rep.  805 
(where    the    fireworks    were    dis- 
charged by  citizens  with  the  par- 
ticipation of  the  town  officers,  who 
made  no  attempt  to  stop  it). 

72  Fifield  v.  Phoenix,  4  Ariz.  283, 
24  L.  R.  A.  430. 


§  311]  LIABILITIES  IN  TORT.  317 

tions  amount  to  a  nuisance  the  city  is  liable  for  injuries  resulting 
therefrom.73  A  city  has  been  held  liable  for  injuries  resulting 
from  unlawfully  licensing  persons  to  allow  a  wagon  to  stand  in 
the  street.74 

The  fact  that  work  is  being  done  by  the  day  when  the  charter 
requires  that  it  shall  be  done  by  contract  is  no  defense  to  an 
action  for  negligence.75  A  city  is  liable  for  trespass  in  attempt- 
ing to  acquire  a  lot  as  a  site  for  a  public  building  in  an  unlaw- 
ful manner  when  it  has  power  to  acquire  it  lawfully.76  A  city 
is  not  liable  for  injuries  received  by  a  prisoner  while  engaged 
in  working  with  other  prisoners  under  the  direction  of  the  chief 
of  police,  who  acted  without  authority  in  requiring  the  prisoner 
to  work.77 

§  311.  Ratification  of  ultra  vires  acts. — If  a  corporation  is 
not  liable  for  an  ultra  vires  tort  because  in  excess  of  its  power  it 
cannot  make  itself  liable  by  ratification  of  the  act  after  it  has  been 
done  by  its  agents ; 78  but  it  may  become  liable  by  the  adoption  or 
ratification  of  acts  which  were  beyond  the  powers  of  the  agents 
but  within  the  scope  of  the  powers  of  the  corporation.  Such  rati- 
fication may  be  express  or  it  may  be  inferred  from  circumstances 
such  as  receiving  the  benefit  of  the  wrongful  act.  Thus,  a  county 
may  become  liable  for  the  ultra  vires  acts  of  its  officers  by  adopt- 
ing them  in  its  answer.79  And  it  was  held  that  a  county  which 
constructed  a  dam  under  the  authority  of  an  unconstitutional  act 
of  the  legislature  is  liable  for  damages  occasioned  thereby  when  it 
assumes  the  entire  responsibility  for  the  same  and  asserts  the 
validity  of  its  acts  in  its  answer.80 

73  The  persons  were  acting  under  78  Hodges  v.  Buffalo,  2  Denio  (N. 

express  permission,  Spiers  v.  Y.),  110;  Mitchell  v.  Rockland,  52 

Brooklyn,  39  N.  Y.  6,  21  L.  B.  A.  Me.  118;  Moore  v.  New  York,  73 

640.  Compare,  Lincoln  v.  Boston,  N.  Y.  238 ;  Trescott  v.  Waterloo,  26 

148  Mass.  578,  3  L.  R.  A.  257.  Fed.  592. 

T*  Cohen  v.  New  York,  113  N.  Y.  79  Wilde  v.  New  Orleans,  12  La. 

532.  Ann.  15. 

75  Douahoe  v.  Kansas  City,  136  so  Schussler  v.  County  Commis- 

Mo.  657;  Collensworth  v.  New  sioners  of  Hennepin  County,  67 

Whatcom,  16  Wash.  224,  47  Pac.  Minn.  412,  70  N.  W.  Rep.  6.  The 

439.  county  not  only  failed  to  plead 

70  Oklahoma  v.  Hill  (Okl.),  50  that  the  acts  complained  of  were 

Pac.  243.  ultra  vires,  but  adopted  and  rati- 

77R0yce  v.  St.  Louis,  15  Utah,  fled  them,  and  insisted  that  they 

401,  49  Pac.  290.  were  right,  proper  and  legal  and 


318 


LIABILITIES   IN   TORT. 


[§312 


§312.  Increase  of  liability  by  contract. — A  city  cannot 
lawfully  contract  to  extend  its  liability  for  negligence  in  a  par- 
ticular instance  beyond  that  imposed  by  the  law.  Hence,  a  con- 
tract entered  into  between  a  city  and  a  party  from  whom  it  pur- 
chased a  right  of  way,  to  the  effect  that  the  city  would  have  the 
sewer  so  constructed  as  to  prevent  water  from  flowing  back  on 
the  grantor's  premises,  was  held  void  in  so  far  as  it  assumed  to 
guaranty  the  grantor  against  damages,  without  reference  to  the 
manner  in  which  the  work  of  the  city  was  done.81  A  city  is  not 
liable  for  a  failure  to  extinguish  fires,82  although  it  owns  the 
water- works  and  receives  an  income  therefrom;  and  in  the  ab- 
sence of  an  express  charter  authority  a  contract  imposing  such 
liability  upon  the  city  is  void.83  "Where  an  action  was  brought 
against  the  city  based  upon  the  neglect  of  the  water-works  com- 
pany to  supply  sufficient  water  to  extinguish  a  fire,  and  it  ap- 
peared that  the  city  had  taken  from  the  water-works  company  a 
bond  to  indemnify  it  against  damages  that  might  result  from  the 
water  company's  negligence  in  the  construction  and  manage- 


performed  under  a  public  neces- 
sity. The  court  said:  "This  is 
therefore  not  a  mere  act  of  negli- 
gence of  the  board  of  county  com- 
missioners in  the  performance  of 
an  official  duty,  but  an  active  and 
affirmative  tort,  done  under  claim 
of  statutory  authority  and  duty, 
and  justified  upon  such  ground  by 
defendant,  and  that  it  was  per- 
formed within  the  scope  of  the 
board's  official  duty.  *  *  *  It 
insists  upon  retaining  the  benefits 
of  the  illegal  acts  of  its  officers.  It 
is  not  willing  that  the  wrong  shall 
cease,  but  aggressively  insists  that 
it  will  make  no  reparation  for  its 
past  tort,  and  that  it  has  a  legal 
right  to  enjoy  in  the  future  all  the 
benefits  secured  through  an  uncon- 
stitutional law.  *  *  *  We  may 
concede  the  general  rule  to  be  that 
the  defendant  would  not  be  respon- 
sible for  the  unauthorized  and  un- 
lawful acts  of  its  officer  done 
colore  offlcii;  but  when  the  defend- 


ant expressly  authorizes  such  act, 
or,  when  done,  adopts  and  ratifies 
it,  and  retains  and  enjoys  its  bene- 
fits, and  persists  in  so  doing,  it  is 
liable  in  damages."  Citing  Thayer 
v.  Boston,  19  Pick.  (Mass.)  511. 
The  rule  of  these  cases  must  be  re- 
garded as  an  exception  to  the  gen- 
eral rule  that  a  corporation  is  not 
responsible  for  torts  in  ultra  vires 
undertakings. 

«i  Nashville  v.  Sutherland,  92 
Tenn.  335,  19  L.  R.  A.  619,  note  on 
ultra  vires. 

sz  Springfield  F.  &  M.  Ins.  Co.  v. 
Keeseville,  148  N.  Y.  46,  42  N.  E. 
405,  30  L.  R.  A.  660;  Mendel  v. 
Healey,  28  W.  Va.  233,  57  Am.  Rep. 
664,  where  the  city  was  empow- 
ered to  maintain  a  sufficient  num- 
ber of  reservoirs  "to  supply  water 
in  case  of  fire;"  Grant  v.  Erie,  69 
Pa.  St.  420,  8  Am.  Rep.  272. 

ss  Black  v.  Columbia,  19  S.  C. 
412,  45  Am.  Rep.  785. 


§  313]  LIABILITIES  IN   TORT.  319 

ment  of  its  works,  the  court  said:84  "Indemnification  against 
liability  must  always  be  regarded  as  having  reference  to  existing 
grounds  of  liability  and  not  as  serving  to  create  new  ones.  Be- 
sides, the  city  could  not  assume  liability  for  negligence  in  cases 
where  the  law  did  not  impose  a  liability.  The  contract  then  must 
be  construed  as  covering  cases  only  where  an  action  might  be 
maintained  against  the  city  independent  of  the  contract." 

§313.  General  rules. — Subject  to  statutory  modifications, 
it  may  safely  be  stated  as  a  general  rule  that: 

1.  A  public  corporation  is  not  liable  for  failing  to  exercise 
or  for  improperly  exercising  its  purely  governmental  powers. 

2.  A  municipal  corporation,  when  dealing  with  property  held 
by  it  as  a  private  owner,  is  liable  as  an  individual  owner. 

3.  A  municipal  corporation  is  liable  for  negligence  in  the 
discharge  of  ministerial  or  specified  duties,  not  discretionary  or 
governmental,  assumed  in  consideration  of  the  privileges  con- 
ferred by  its  charter,  although  there  are  no  special  awards  or  ad- 
vantages. 

4.  In  many  states  by  the  common  law,  and  in  some  states  by 
statute,  a  municipal  corporation  is  liable  for  failure  to  keep 
streets,  alleys,  roads,  sidewalks  and  bridges  in  repair.    No  such 
liability  rests  upon  counties  and  townships  at  common  law. 

a.    SOLELY  GOVERNMENTAL  DUTIES. 

§  314.  Definition. — Solely  governmental  duties  are  such  as 
involve  the  exercise  of  governmental  power  and  are  assumed 
for  the  exclusive  benefit  of  the  public.  The  sovereign  acts  of  a 
government  cannot  be  submitted  to  the  judgment  of  the  courts. 
The  government  is  not  a  subject  of  private  law.  "The  rule  that 
a  tort  creates  a  liability  for  damages  is  a  rule  of  private  law; 
it  therefore  applies  to  the  relations  of  the  private  law  only.  The 
position  of  the  state,  when  it  acts  in  the  exercise  of  sovereign 
and  governmental  functions,  is,  however,  entirely  beyond  the 

s*  Van  Home  v.  Des  Moines,  63  city  harmless  from  the  results  of 

Iowa,  447 ;  Becker  v.  Keokuk  Water  the  negligence  of  the  company  does 

Works,  79  Iowa,  419.     The  taking  not   increase   the    liability   of   the 

of  a  bond  from  a  railroad  company  city.     Terry  v.  Richmond,  94  Va. 

which  is  about  to  lay  its  tracks  in  537,  27  S.  E.  429,  38  L.  R.  A.  834. 
the  streets  of  the  city  to  save  the 


320 


PUBLIC   CORPORATIONS. 


;[§  315 


sphere  of  private  law,  and  must  be  judged  by  different  standards. 
*  *  *  Governmental  functions  do  not  create  civil  causes  of 
action."  1  The  state,  directly  or  through  its  corporate  agencies, 
' '  gives  such  protection  from  law-breakers,  from  fire,  from  disease 
and  from  other  common  evils  as  the  power,  energy  and  faithful- 
ness of  the  government  shall  compass."  A  person  can  have  no 
civil  action  from  damages  resulting  from  his  being  badly  gov- 
erned.2 

§315.  Neglect  to  enact  or  enforce  laws. — A  corporation  is 
not  liable  for  a  failure  to  enact,  or  neglect  to  enforce  or  ob- 
serve, its  own  laws  and  ordinances.3  Hence  there  is  no  liability 


1  Freund,  "Private  Claims  against 
the  State,"  Political  Science  Quar- 
terly, VIII,  p.  648. 

2  Many  cases  in  support  of  the 
rule  that  a  municipal  corporation 
is  exempt  from  liability  when  act- 
ing as  the  agent  of  the  state  and 
exercising  governmental  power  are 
collected   and   reviewed   in    Dona- 
her  v.  City  of  Brooklyn,  51  Hun 
(N.  Y.),  563,  and  in  Moffitt  v.  City 
of  Asheville,  103  N.  C.  237,  14  Am. 
St.  Rep.  810,  and  note.     In  Terry 
v.  Richmond,  94  Va.  537,  27  S.  E. 
429,  38  L.  R.  A.  834,  the  rule  is 
thus  stated :     "The  duty  of  a  mu- 
nicipal corporation  to  see  that  the 
streets  and  sidewalks  are  in  a  safe 
condition,  and  its  sewers  and  drains 
are  kept  in  good  order,  and  that 
its  other  like  municipal  obligations 
are  cared  for,  is  a  purely  minis- 
terial and  absolute  corporate  duty, 
assumed   in   consideration   of   the 
privilege  conferred  by  its  charter; 
and  the  law  holds  the  municipality 
responsible  for  an  injury  resulting 
from  a  negligent  discharge  of  that 
duty  or  the  negligent  omission  to 
discharge  it,  but  exempts  it  from 
liability  for  the  exercise  of  govern- 
mental   or   discretionary   powers." 
Richmond  v.  Long,  17  Gratt.  375, 
94   Am.   Dec.   461;    Petersburg   v. 


Applegarth,  28  Gratt.  343,  26  Am. 
Rep.  357;  Elliott,  Roads  and 
Streets,  pp.  504,  532;  Dillon,  Mun. 
Corp.,  II,  §§1046,  1049;  Tiedeman, 
Mun.  Corp.,  §349;  Cooley,  Torts, 
p.  738;  Stevens  v.  Muskegon,  111 
Mich.  72,  69  N.  W.  227;  Eddy  v. 
Granger,  19  R.  I.  105;  Commis- 
sioners v.  Allman,  142  Ind.  58. 

3  Harmon  v.  St.  Louis,  137  Mo. 
494,  38  S.  W.  Rep.  1102;  Fowle  v. 
Alexandria,  3  Pet.  (U.  S.)  398; 
Wheeler  v.  Plymouth,  116  Ind.  158, 
18  N.  E.  532;  Forsyth  v.  Atlanta, 
45  Ga.  152;  Burford  v.  Grand 
Rapids,  53  Mich.  98,  51  Am.  Rep. 
105.  In  Anderson  v.  East,  117  Ind. 
126,  19  N.  E.  726,  2  L.  R.  A.  712, 
the  rule  is  thus  stated :  "A  munici- 
pal corporation  is  an  instrumen- 
tality of  government  and  is  not  lia- 
ble for  a  failure  to  exercise  legis- 
lative or  judicial  powers,  nor  for 
an  improper  or  negligent  exercise 
of  such  powers.  *  *  *  In  one 
thing  all  unite,  and  that  is  in  af- 
firming that  no  recovery  can  in  any 
event  be  had  where  the  negligence 
of  the  municipal  corporation  con- 
sists in  failing  to  perform  a  legis- 
lative, judicial  or  discretionary 
duty  or  in  simply  performing  such 
a  duty  in  an  improper  method." 


§316] 


LIABILITIES  IN   TORT. 


321 


for  damages  resulting  from  a  failure  to  enforce  an  ordinance 
against  the  use  of  fireworks,4  against  allowing  sunken  vessels  to 
remain  in  a  river,5  against  allowing  swine  to  run  at  large,6 
against  nuisances,7  against  coasting  on  the  streets,8  or  against 
the  erection  of  certain  kinds  of  buildings  within  the  fire  limits,3 
or  against  creating  a  nuisance.10 

§  316.  Suspension  of  ordinances. — It  rests  with  the  corpora- 
tion to  determine  whether  it  will  exercise  its  governmental  pow- 
ers. It  may  entirely  fail  to  act  or  it  may  temporarily  suspend  an 
ordinance  without  becoming  liable  for  injuries  resulting  thereby 
to  individuals.  Thus,  there  is  no  liability  when  an  ordinance  is 
suspended  and  because  of  such  suspension  a  fire  is  started  by  boys 
exploding  fireworks,1 1  or  for  damages  caused  by  a  runaway  horse 
which  was  frightened  by  fireworks  or  salutes  on  a  municipal  com- 
mon ; 12  or  to  a  person  who  is  injured  by  cattle  allowed  to  run  at 


4  McDade  v.  Chester,  117  Pa.  St. 
414,  2  Am.  St.  681 ;  Hubbell  v.  City 
of  Viroqua,  67  Wis.  343,  30  N.  W. 
847,  58  Am.  Rep.  866  (shooting- 
gallery  under  a  license)  ;  Robinson 
v.  Greenville,  42  Ohio  St.  625,  51 
Am.  Rep.  857;  Ball  v.  Woodbine, 
61  Iowa,  83,  47  Am.  Rep.  805. 

s  Coonley  v.  Albany,  57  Hun,  327. 

e  Levy  v.  New  York,  1  Sandf.  (N. 
Y.)  465.  But  a  city  may  be  liable 
for  allowing  cattle  to  run  at  large 
in  the  streets  under  circumstances 
which  amount  to  a  nuisance.  Coch- 
rane  v.  Frostburg,  81  Md.  54,  31 
Atl.  703,  27  L.  R.  A.  728.  In  Mayor 
v.  Marriott,  9  Md.  174,  66  Am.  Dec. 
326,  it  was  held  that  where  a  stat- 
ute conferred  a  power  upon  a  pub- 
lic corporation  to  be  exercised  for 
the  public  good  the  exercise  of  that 
power  is  not  discretionary  but  im- 
perative. Hence,  in  Cochrane  v. 
Frostburg,  81  Md.  54,  48  Am.  St. 
479,  a  city  was  held  liable  for  dam- 
ages caused  by  a  cow  running  at 
large  in  the  street  where  the  city 
had  power  to  restrain  by  ordinance. 

'Davis  v.  Montgomery,  51  Ala. 

21 


139;  Butz  v.  Cavanaugh,  137  Mo. 
503,  38  S.  W.  1102. 

s  Wilmington  v.  Von  Degrift,  1 
Marvel  (Del.),  5,  29  Atl.  1047,  25 
L.  R.  A.  538. 

9  Harrnan  v.  St.  Louis,  137  Mo. 
494,  38  S.  W.  1104. 

ioMoran  v.  Palace  Car  Co.,  134 
Mo.  641,  36  S.  W.  659,  56  Am.  St. 
543. 

11  Hill  v.  Charlotte,  72  N.  C.  55, 
21  Am.  Rep.  451. 

12  Lincoln  v.   Boston,  148  Mass. 
578,  3  L.  R.  A.  257.    As  to  liability 
for  injuries  caused  by  the  firing  of 
a  cannon  in  a  public  street  with  the 
knowledge  of  but  without  the  ex- 
press license  of  the  corporate  au- 
thorities,   see   Robinson   v.    Green- 
ville, 42  Ohio  St.  625,  51  Am.  Rep. 
857,  note.    As  to  liability  for  fail- 
ure   to    prevent    a    nuisance,    see 
Faulkner  v.  Aurora,  85  Ind.  130,  44 
Am.  Rep.  1 ;   Pierce  v.  New  Bed- 
ford, 120  Mass.  534,  37  Am.  Rep. 
387 ;  Schultz  v.  Milwaukee,  49  Wis. 
254,  35  Am.  Rep.  779.     A  city  is 
liable  for  injuries  to  property  by 
an  explosion  of  fireworks  under  a 


322 


PUBLIC   CORPORATIONS. 


[§317 


large  in  the  streets  under  a  suspended  ordinance.13  A  distinction, 
however,  is  sometimes  made  between  the  mere  suspension  of  an 
ordinance  and  the  granting  of  a  license  to  an  individual  to  do  an 
otherwise  forbidden  thing.14 

§  317.  Liability  for  acts  of  a  mob. — In  the  absence  of  a  stat- 
ute there  is  no  liability  on  the  part  of  a  public  corporation  for 
negligence  in  failing  to  protect  the  lives  and  property  of  the 
citizens  from  mob  violence.15  In  many  states,  however,  statutes 
have  been  enacted  giving  a  right  of  action  against  a  municipality 
for  damages  caused  by  the  destruction  of  property  by  a  mob.18 
The  right,  however,  is  purely  statutory,  and  may  be  taken  away  at 
any  time  before  or  after  the  damage  has  been  sustained.17  A 
statute  providing  that  the  corporation  shall  be  liable  for  the  de- 
struction of  property  by  a  mob  will  not  sustain  an  action  for 
the  taking  of  human  life.18  Usually  the  statute  provides  that  a 
party  cannot  recover  if  he  had  previous  knowledge  of  the  in- 
tended attempt  to  destroy  his  property,  unless  he  or  his  agent 
gave  notice  of  such  intention  to  the  officials  whose  duty  it  was 


permit  constituting  a  dangerous 
public  nuisance.  Speir  v.  Brook- 
lyn, 139  N.  Y.  6,  21  L.  R.  A.  641. 
This  case  is  not  in  accordance  with 
the  weight  of  authority.  See  note 
to  Scanlon  v.  Wedger,  in  16  L.  R. 
A.  395;  also  next  section. 

13  Rivers  v.  Augusta,  65  Ga.  376, 
38  Am.  Rep.  787.  Contra,  Coch- 
rane  v.  Frostburg,  81  Md.  54,  31 
Atl.  703,  48  Am.  St.  479.  This 
decision  is  apparently  on  the  same 
ground  as  those  which  in  New  York 
and  states  following,  hold  that  a 
city  is  liable  to  travellers  injured 
by  failure  to  repair  streets. 

i*  McCaull  v.  Manchester,  85  Va. 
579,  2  L.  R.  A.  691. 

is  Western  Reserve  College  v. 
Cleveland,  12  Ohio  St.  375 ;  Robin- 
son v.  Greenville,  42  Ohio  St.  625; 
Gianfortone  v.  New  Orleans,  61 
Fed.  64,  24  L.  R.  A.  592  (the 
authorities  are  collected  in  a  note 
to  this  case)  ;  Hart  v.  Bridgeport, 
13  Blatchf.  289;  Prather  v.  Lex- 


ington, 13  B.  Mon.  559,  56  Am.  Dec. 
585. 

i«  Darlington  v.  New  York,  31 
N.  Y.  164,  88  Am.  Dec.  248 ;  Palmer 
v.  Concord,  48  N.  H.  211,  97  Am. 
Dec.  605.  In  Allegheny  County  v. 
Gibson,  90  Pa.  St.  397,  35  Am.  Rep. 
670,  it  was  held  that  under  the 
statute  the  county  was  liable  to  a 
non-resident  for  the  value  of  prop- 
erty destroyed  by  a  mob  while 
passing  through  the  county.  Adam- 
son  v.  New  York,  188  N.  Y.  255. 

17  State  v.  New  Orleans,  109  TJ. 
S.  285 ;  New  Orleans  v.  Abagznatto, 
62  Fed.  240,  26  L.  R.  A.  329.  For 
construction  of  such  a  statute,  see 
Adams  v.  Salina,  58  Kas.  246,  48 
Pac.  918.  For  definition  of  a  "riot," 
see  Aron  v.  City  of  Wausau,  98 
Wis.  592,  74  N.  W.  354;  2  Whart 
Cr.  Law  (10th  ed.),  §1537. 

is  Jolly  v.  Hawesville,  89  Ky. 
279 ;  Gianfortone  v.  New  Orleans, 
supra,  and  note. 


§318] 


LIABILITIES   IN  TORT. 


323 


to  guard  the  property.19  The  party  must  use  due  diligence  on 
his  own  part  to  prevent  the  injury,20  but  he  will  not  be  presumed 
to  have  acted  illegally  or  improperly.21  The  constitutionality  of 
such  statutes  has  been  frequently  called  in  question  and  uni- 
formly sustained.22  It  is  not  the  duty  of  a  person  to  employ  an 
armed  force  to  protect  his  property,  and  he  cannot  be  charged 
with  negligence  because  he  declined  to  take  human  life.  It  is 
no  defense  under  such  a  statute  that  the  mob  was  composed  of  the 
employees  of  the  plaintiff.23 

§318.  Acts  of  police  officers. — Police  officers  act  solely  in 
relation  to  the  governmental  duty  of  the  state  to  preserve  order, 
and  no  liability  rests  upon  the  corporation  for  their  negligence 
in  the  performance  of  such  duties.24  Thus,  a  city  is  not  liable 


i»  Allegheny  County  v.  Gibson,  90 
Pa.  St.  397;  Moody  v.  Niagara 
County,  46  Barb.  (N.  Y.)  659. 

20  Chadbourne   v.   Newcastle,   48 
N.  H.  196;  Eastman  v.  New  York, 
5  Robt.   (N.  Y.)  389;  Underbill  v. 
Manchester,  45  N.  H.  214;  Hill  v. 
Rensselaer  County,  119  N.  Y.  344. 

21  Palmer  v.  Concord,  48  N.  H. 
211,  97  Am.  Dec.  605. 

22  Pennsylvania   Co.   v.   Chicago, 
81   Fed.   317;   Darlington  v.   New 
York,  31  N.  Y.  164,  88  Am.  Dec. 
248 ;  Hagerstown  v.  Sehner,  37  Md. 
180. 

23  Spring  Valley  v.   Spring  Val- 
ley, 65  111.  App.  571. 

24  Woodhull  v.  New  York,  150  N. 
Y.  450;   Taylor  v.  Owensboro,  98 
Ky.   271;   Gullikson  v.   McDonald, 
62  Minn.  278 ;  Kies  v.  Erie,  135  Pa. 
St  144;  Kimball  v.  Boston,  1  Al- 
len, 417 ;  Calwell  v.  Boone,  51  Iowa, 
687;    Perkins   v.    New    Haven,   53 
Conn.  214;   Dargan  v.   Mobile,  31 
Ala.  469,  70  Am.  Dec.  505.    In  Cul- 
ver v.  Streator,  130  111.  238,  6  L.  R. 
A.  270,   the  court  said:     "Police 
officers  appointed  by  the  city  are 
not  its  agents  or  servants  so  as  to 
render  it  responsible  for  their  un- 


lawful or  negligent  acts  in  the  dis- 
charge of  their  duties.  According- 
ly it  has  been  held  that  the  city  is 
not  liable  for  an  assault  and  bat- 
tery committed  by  its  police  offi- 
cers, though  done  in  an  attempt  to 
enforce  an  ordinance  of  the  city 
(Buttrick  v.  Lowell,  1  Allen,  172)  ; 
nor  for  illegal  and  oppressive  acts 
of  officers  committed  in  the  admin- 
istration of  an  ordinance  (Odell  v. 
Schroeder,  58  111.  353)  ;  nor  for 
an  arrest  made  by  them  which  is 
illegal  for  want  of  a  warrant  (Pol- 
lock v.  Louisville,  13  Bush,  221; 
Cook  v.  Macon,  54  Ga.  468 ;  Harris 
v.  Atlanta,  62  Ga.  290)  ;  nor  for 
their  unlawful  acts  of  violence, 
whereby  in  the  exercise  of  their 
duty  in  suppressing  an  unlawful 
assemblage  an  injury  is  done  to  the 
property  of  an  individual  (Stewart 
v.  New  Orleans,  9  La.  Ann.  461,  61 
Am.  Dec.  219;  Dargan  v.  Mobile, 
31  Ala.  469)."  There  is  no  liabil- 
ity for  acts  of  police  when  attempt- 
ing to  enforce  an  illegal  ordinance. 
Easterly  v.  Town  of  Irwin,  99  Towa, 
694,  68  N.  W.  919.  No  liability  of 
city  to  one  who  is  injured  while 
aiding  the  police  to  make  an  arrest. 


324  PUBLIC   CORPORATIONS.  [§  319 

for  damages  resulting  from  an  unlawful  arrest;25  the  act  of  a 
drunken  policeman  in  assaulting  a  citizen ; 26  allowing  a  horse  to 
escape  and  be  killed  while  attempting  to  make  an  arrest  for  fast 
driving ;  27  nor  the  wanton  and  malicious  killing  of  a  dog  under 
the  pretense  of  enforcing  an  ordinance.28  So  where  an  officer 
whose  duty  it  is  to  kill  unmuzzled  dogs,  by  his  recklessness  in  at- 
tempting to  discharge  such  duty  injures  an  individual,  the  cor- 
poration is  not  liable  for  damages.20 

§319.  Prevention  of  fires. — The  obligation  to  prevent  the 
destruction  of  property  by  fire  is  solely  governmental.30  "As 
a  part  of  the  governmental  machinery  of  the  state,  municipal 
corporations  legislate  and  provide  for  the  customary  local  con- 
veniences of  the  people,  and  in  exercising  these  discretionary 
functions  the  corporations  are  not  called  upon  to  respond  in 
damages  to  individuals  either  for  omissions  to  act  or  for  the  mode 
of  exercising  powers  conferred  on  them  for  public  purposes  and 
to  be  exercised  at  discretion  for  the  public  good."  31  The  protec- 
tion of  all  the  buildings  in  a  city  or  town  from  destruction  or 
injury  by  fire  is  for  the  benefit  of  all  the  inhabitants  and  for  their 
protection  from  a  common  danger.32  A  city  is  not  an  insurer  of 
the  property  of  its  inhabitants.  The  extent  and  manner  of  the  ex- 
ercise of  the  power  to  prescribe  regulations  governing  a  fire  de- 
partment must  necessarily  be  determined  by  the  judgment  and 
discretion  of  the  proper  municipal  authorities,  and  for  any  de- 
fect in  the  execution  of  such  power  the  corporation  cannot  be 

Cobb  v.  Portland,  55  Me.  381,  92  sary  violence  in  making  an  arrest. 

Am.  Dec.  598.     The  exemption  of  Calwell  v.  Boone,  51  Iowa,  687. 
the  corporation  extends  to  injuries         27  Elliott  v.  Philadelphia,  75  Pa. 

caused  by  negligence  in  the  care  St.  342,  15  Am.  Rep.  591. 
of   a    building   for   the   police   de-         28  Moss  v.  Augusta,  93  Ga.  797. 
partment.      Wilcox    v.    Rochester,         29  Culver  v.  Streator,  130  111.  238, 

190  N.  Y.  137.  6  L.  R.  A.  270 ;  Whitefield  v.  Paris, 

25  Attaway  v.  Cartersville,  68  Ga.  84  Tex.  431,  15  L.  R.  A.  783  (anno- 
740;  Peters  v.  Lindsborg,  40  Kan.  tated). 

654 ;    Gullikson    v.    McDonald,    62  so  Edgerly  v.  Concord,  59  N.  H. 

Minn.  278 ;  City  of  Caldwell  v.  Pru-  78 ;  Welsh  v.  Rutland,  56  Vt.  228 ; 

nelle,  57  Kan.  511.    The  policeman  Hayes  v.  Oshkosh,  33  Wis.  314,  14 

is  personally  liable  for  making  a  Am.  Rep.  760. 

malicious   arrest.     Bolton   v.   Arel-  si  Edgerly  v.  Concord,  62  N.  H. 

lines,  94  Va.  393,  26  S.  E.  847.  8. 

26  McElroy  v.  Albany,  65  Ga.  3S7,  32  Wheeler  v.  Cincinnati,  19  Ohio 
38  Am.  Rep.  791.    Nor  for  urmeces-  St.  19,  2  Am.  Rep.  368. 


LIABILITIES   IN   TOET.  325 

held  liable  to  individuals.33  It  is  not,  therefore,  liable  for  neglect 
of  duty  on  the  part  of  fire  companies  or  their  officers  charged  with 
the  duty  of  extinguishing  fires.  "When  a  municipal  corporation 
undertakes  to  furnish  water  to  be  used  as  a  protection  against 
fire,  it  acts  in  its  governmental  capacity,  and  is  not  liable  in 
damages  for  injury  caused  by  lack  of  water  or  a  defect  in  the 
hydrants  or  other  machinery  of  the  fire  or  water  department.  By 
accepting  a  statute  authorizing  the  maintenance  of  a  system  of 
water-works  and  constructing  its  water-works  under  it,  a  city 
does  not ' '  enter  into  any  contract  with  or  assume  any  liability  to 
the  owners  of  property  to  furnish  means  or  water  for  the  extin- 
guishment of  fires  upon  which  an  action  can  be  maintained."34 

§  320.    Destruction  of  property  to  prevent  spread  of  fire. — 

By  the  common  law,  under  the  principle  expressed  in  the  maxim 
salus  populi  suprema  lex,  an  individual  or  a  corporation  might 
destroy  houses  or  other  private  property  to  prevent  the  spread 
of  a  conflagration  without  being  responsible  to  the  owner  for 
the  value  of  the  property  so  destroyed.35  Thus,  Lord  Coke  says : 
' '  For  the  Commonwealth,  a  man  shall  suffer  damage ;  as  for  the 
saving  of  a  city  or  town,  a  house  shall  be  plucked  down  if  the 
next  be  on  fire.36  This  every  man  may  do  without  being  liable 
for  an  action."  It  must  appear,  however,  that  there  was  a  rea- 
sonable necessity  for  such  destruction.37  It  is  not  uncommon  for 
the  law  to  designate  certain  officers  who  are  to  determine  when 
an  emergency  exists  and  to  order  the  destruction  of  private  prop- 

ss  Mendel  v.  Wheeling,  28  W.  Va.  ss  Bowditch  v.  Boston,  101  TJ.  S. 

253,  57  Am.  Rep.  665 ;  Heller  v.  Se-  16 ;    McDonald    v.    Red    Wing,    13 

dalia,  53  Mo.  159,  14  Am.  Rep.  444 ;  Minn.  38 ;  Field  v.  Des  Moines,  39 

Van  Home  v.  Des  Moines,  63  Iowa,  Iowa,  575. 

447,  50  Am.  Rep.  750;  Grant  v.  se  Mouse's  Case,  12  Coke,  13,  63. 
Erie,  69  Pa.  St.  420,  8  Am.  Rep.  ^  In  Bishop  v.  Macon,  7  Ga. 
272 ;  Patch  v.  Covington,  17  B.  Mon.  200,  50  Am.  Dec.  400,  it  was  held 
(Ky.)  722,  66  Am.  Dec.  186;  Black  that  the  property  owner  could 
v.  Columbia,  19  S.  C.  412,  45  Am.  maintain  an  action  against  the  city 
Rep.  785 ;  Howsman  v.  Trenton  in  assumpsit  for  the  value  of  prop- 
Water  Co.,  119  Mo.  304,  23  L.  R.  erty  that  might  have  been  saved; 
A.  146  (annotated).  but  this  decision  has  been  ques- 

3*Tainter     v.     Worcester,     123  tioned.     See  cases   cited  in  next 

Mass.  311,  25  Am.  Rep.  90 ;  Spring-  note, 
field  Fire  Ins.  Co.  v.  Keeseville,  148 
N.  Y.  46,  30  L.  R.  A.  660,  and  cases 
cited  in  preceding  note. 


326  PUBLIC   CORPORATIONS.  [§  321 

erty  under  such  circumstances.  Corporations  are  also  frequently 
made  liable  by  statute  for  the  value  of  property  thus  destroyed.38 
It  must  appear  clearly  that  there  is  an  intention  to  charge  the 
corporation,  and  the  party  seeking  his  remedy  must  proceed 
under  the  statute.39  The  destruction  of  property  under  a  nec- 
essity of  this  nature  is  not  the  taking  of  private  property  for  pub- 
lic use  for  which  compensation  must  be  made  under  the 
constitution. 

§  321.  Acts  of  firemen. — The  officers  and  men  of  a  city  fire 
department  are  public  officers  or  agents  for  whose  negligence  the 
corporation  is  not  liable.40  This  is  true  whether  the  injury  for 
which  it  is  sought  to  recover  damages  results  from  the  negligent 
acts  or  omissions  of  firemen  while  engaged  in  their  proper  duty 
of  extinguishing  fires,  in  keeping  the  department  apparatus  in 
order,41  or  in  the  management  and  care  of  the  appliances  of  the 
department  when  not  in  actual  service.  Thus,  there  can  be  no 
recovery  for  the  value  of  property  destroyed  by  fire  started  by 
sparks  escaping  from  a  steam  fire-engine  while  used  in  extinguish- 
ing a  fire ;  42  nor  for  an  injury  to  a  person  resulting  from  the 
bursting  of  hose ; 43  nor  for  damages  caused  by  a  runaway  horse 
frightened  by  the  escape  of  steam  from  a  fire-engine ;  44  nor  for  an 
injury  resulting  from  the  negligent  driving  of  a  fireman  on  the 
way  to  a  fire ; 45  nor  for  injuries  inflicted  while  the  firemen  are 

38  For  a  full  discussion  of  gen-  402;    Wilcox   v.   Chicago,   107   111. 
eral  questions  of  liability,  see  Field  337,  47  Am.   Rep.  434,   and  cases 
v.   Des   Moines,   39   Iowa,   575,   18  cited  in  following  notes.    The  rule 
Am.    Rep.    46;    McDonald   v.    Red  respondeat  superior  has   no  appli- 
Wing,  13  Minn.  38  (Gil.  25).  cation  in  such  a  'case.    Jewett  v. 

39  Keller   v.    Corpus   Christ!,   50  New  Haven,  38  Conn.  368,  9  Am. 
Tex.  614,  32  Am.  Rep.  613.    In  Peo-  Rep.   382 ;    Fisher   v.    Boston,   104 
pie  v.  Brisbane,  76  N.  Y.  558,  32  Mass.  87,  6  Am.  Rep.  196. 

Am.    Rep.   337,    it   was   held   that  « Welsh  v.  Rutland,  56  Vt.  228, 

where    the    statute   provides    that  48  Am.  Rep.  762. 

compensation  shall  be  made  for  a  42  Hayes  v.  Oshkosh,  33  Wis.  314, 

building  blown  up  or  destroyed  by  14  Am.  Rep.  760. 

order  of  a   designated  officer,  the  43  Fisher  v.  Boston,  104  Mass.  87, 

owner  of  another  building  across  6  Am.  Rep.  196. 

the  street  which  was  wrecked  by  44  Burrill  v.  Augusta,  78  Me.  118, 

the  explosion,  but  which  was  not  57  Am.  Rep.  788. 

intended   to   be  destroyed,   cannot  45  Wilcox  v.  Chicago,  104  111.  334, 

recover,   although   the   destruction  47   Am.    Rep.   434 ;    Greenwood   v. 

of  his  building  was  the  natural  and  Louisville,   13   Bush,   226,  26  Am. 

probable  result  of  the  explosion.  Rep.  263. 
4<>Grube  v.   St.  Paul,  34  Minn. 


§  322]  LIABILITIES   IN   TORT.  327 

practicing  in  the  streets  46  or  engaged  in  a  parade,47  or  thawing 
a  hydrant,  48  or  by  allowing  a  ladder  to  project  from  an  engine 
house  over  the  sidewalk.49  The  fact  that  firemen  engaged  in  the 
extinguishing  of  fires  are  members  of  a  voluntary  association  and 
not  paid  firemen  does  not  change  the  rule  as  to  the  liability  of  the 
city  for  their  negligence.50  The  city  is  not  liable  for  the  negli- 
gence of  the  members  of  a  fire  patrol51  nor  of  a  board  of  fire  com- 
missioners.52 There  may,  however,  be  instances  where,  on  other 
grounds,  a  corporation  is  liable  in  damages  for  injuries  resulting 
from  the  negligent  acts  of  its  firemen  or  police  officers.  Thus,  a 
city  may  be  liable  for  damages  resulting  from  an  obstruction 
wrongfully  placed  and  allowed  to  remain  in  a  highway  by  a  fire 
department  because  of  its  duty  to  keep  its  streets  in  a  safe  con- 
dition.53 It  is  the  duty  of  the  corporation  to  keep  the  highway 
safe  for  the  use  of  travelers,  and  a  city  is  liable  for  damages  re- 
sulting from  negligently  allowing  a  nuisance  to  exist  in  a  high- 
way after  due  notice  thereof.  Hence,  if  a  police  officer  leaves 
a  trap-door  open  in  a  sidewalk  in  front  of  a  police  station,  and 
as  a  result  an  individual  is  injured,  the  city  is  liable.54  This 
liability,  however,  is  based  not  upon  the  act  of  the  officer,  but  upon 
the  negligence  on  the  part  of  the  city  in  failing  to  care  for  its 
property. 

§  322.  Boards  of  health— Care  of  hospitals.— The  duties  of 
a  board  of  health,  or  of  boards  in  charge  of  hospitals  or  of  other 
charitable  medical  service,  are  public  and  not  corporate,  and  the 
city  is  therefore  not  liable  for  negligence  of  officers  in  the  dis- 

*«  Thomas  v.  Findley,  6  Ohio  C.  Newcomb     v.     Boston     Protection 

C.  241 ;  Gillespie  v.  Lincoln,  35  Neb.  Dept.,  151  Mass.  215,  24  N.  E.  39,  it 

34,  16  L.  R.  A.  349.  was  held  that  such  an  organization 

47  Rope  drawn  across  the  street,  was  a  private  corporation  and  lia- 
Simon  v.  Atlanta,  67  Ga.  618,  44  ble  for  the  negligence  of  its  agents. 
Am.  Rep.  739.  52  Q'Leary    v.    Board,    79    Mich. 

48  Welsh  v.  Rutland,  56  Vt.  228,  281,  7  L.  R.  A.  170. 

48  Am.  Rep.  762.  ™  See  opinion  of  Tillinghast,  J., 

49  Dodge  v.  Granger,  17  R.  I.  664.     in  Dodge  v.  Granger,  17  R.  I.  664, 
For    further    illustrations    of    the     15  L.  R.  A.  781. 

principle  see  cases  cited  in  note  54  Carrington  v.  St.  Louis,  89  Mo. 

to  this  case,  in  15  L.  R.  A.  781.  208.  The  personal  knowledge  of 

BO  Torbush  v.  Norwich,  38  Conn,  the  policeman  was  held  to  be  suffi- 

225,  9  Am.  Rep.  395.  cient  notice  to  the  corporation  of 

si  Boyd  v.  Insurance  Patrol  of  the  dangerous  condition  of  the  side- 
Philadelphia,  113  Pa.  St.  269.  In  walk. 


328 


PUBLIC   CORPORATIONS. 


[§323 


charge  of  such  duties.55  Hence,  a  city  is  not  liable  for  negligence 
of  those  in  charge  of  its  public  hospitals,56  or  engaged  in  handling 
garbage ; 57  nor  is  a  county  liable  for  the  negligence  of  the  county 
physician.58  Where  the  board  of  health  is  a  separate  body,  its 
members  and  officers  are  not  the  agents  of  the  corporation,  and 
their  negligence  is  not  its  negligence.  Hence,  the  neglect  or  care- 
lessness of  a  quarantine  officer  upon  whom  the  public  imposes 
the  duty  of  preventing  the  spread  of  disease  creates  no  liability 
against  the  corporation.59 

§323.  Care  of  criminals. — A  city  is  not  liable  to  a  person 
who  is  confined  in  a  city  prison  for  damages  occasioned  by  neg- 
ligence of  the  officers  or  the  bad  sanitary  condition  of  the  prison.60 
Nor  is  it  liable  for  injuries  occasioned  by  the  destruction  of  a  jail 
by  fire  occasioned  by  the  negligence  of  its  officers.61  Nor  is  a 
county  liable  for  injuries  caused  by  defective  machinery  used  in 
a  state  prison ; 62  nor  for  the  death  of  a  convict  due  to  the  negli- 
gence of  a  foreman.63  The  city  is  not  liable  for  personal  injuries 


55  Bryant  v.  St.  Paul,  33  Minn. 
289,  53  Am.  Rep.  31;  Love  v.  At- 
lanta, 95  Ga.  129,  51  Am.  St.  64; 
Orlando  v.  Pragg,  31  Fla.  Ill,  34 
Am.  St.  17,  25 ;  Whitfield  v.  Paris, 
84  Tex.  431,  31  Am.  St.  69,  note; 
Hughes  v.  Monroe  County,  147  111. 
49. 

SB  Benton  v.  Trustees  of  Boston 
City  Hospital,  140  Mass.  13 ;  Brown 
v.  Vinalhaven,  65  Me.  402;  White 
v.  Marshfield,  48  Vt.  20. 

"Kuehn  v.  Milwaukee,  92  Wis. 
263. 

58  Summers  v.  Davis  County,  103 
Ind.     2G3;     Sherbourne    v.     Yuba 
County,  21  Cal.  113 ;  Bates  v.  Hous- 
ton, 14  Tex.  Civil  App.  287,  37  S. 
W.  383. 

59  Forbes  v.  Eseambria  Board  of 
Health,  28  Fla.  26,  13  L.  R.  A.  549. 
In  Ogg  v.  Lansing,  35  Iowa,  495,  14 
Am.    Rep.    499,    the   plaintiff   was 
asked  by  the  health  officer  to  assist 
in  moving  a  coffin  which  contained 
the  body  of  a  person  who  had  died 
of  the  smallpox,  which  was  known 
to  the  officer.    The  plaintiff  caught 


the  disease,  and  from  him  it  was 
contracted  by  his  children.  It  was 
held  that  he  had  no  cause  of  action 
against  the  city  for  their  death. 

eo  Hughes  v.  Lawrenceburg,  18 
Ky.  Law.  550,  37  S.  W.  257;  La 
Clef  v.  City  of  Concordia,  41  Kan. 
323,  13  Am.  St.  385;  Lindley  v. 
Polk  County,  84  la.  308,  50  N.  W. 
975;  Gulliken  v.  McDonald,  62 
Minn.  278.  But  see  Shields  v.  Dur- 
ham, 118  N.  C.  450.  In  Virginia  in- 
corporated cities  and  towns,  but 
not  counties,  are  required  to  exer- 
cise the  same  care  over  prisons  as 
over  their  streets  and  sewers,  and 
are  liable  for  negligence.  Edwards 
v.  Pocahontas,  47  Fed.  268. 

8i  Brown  v.  Guyandotte,  34  W. 
Va.,  299,  12  S.  E.  707,  11  L.  R.  A. 
121 ;  Hughes  v.  Lawrenceburg,  18 
Ky.  Law,  550,  37  S.  W.  257. 

62Alarnango  v.  Albany  County, 
25  Hun  (N.  Y.),  551. 

esNisbit  v.  Atlanta,  97  Ga.  650. 
See  Royce  v.  Salt  Lake  City,  15 
Utah,  401,  49  Pac.  290. 


§  324]  LIABILITIES  IN  TORT.  329 

suffered  by  an  inmate  of  the  city  work-house  while  engaged  in  un- 
loading coal,  although  the  city  derives  a  certain  amount  of  rev- 
enue from  the  employment  of  the  inmates  of  the  prison.64 

§324.  Care  of  the  indigent. — When  a  public  corporation 
undertakes  to  care  for  the  poor,  it  acts  in  its  governmental  ca- 
pacity and  is  not  liable  for  negligence  in  connection  therewith.65 

§325.  Care  of  school  buildings. — A  public  quasi-corpora- 
tion,  acting  on  behalf  of  the  state  and  having  no  separate  fund,  is 
not  liable  for  negligence  in  the  care  of  the  school  buildings.66 
Thus,  such  a  corporation  is  not  liable  for  an  injury  caused  by  a 
broken  lightning  rod  67  or  an  uncovered  cellar.68  School  trustees 
are  state  officers  and  not  the  agents  of  the  corporation.  In  some 
cases  a  liability  exists  on  the  part  of  the  officers,  but  trustees  are 
not  liable  unless  they  have  some  means  of  providing  funds  for 
keeping  the  property  in  repair.69  The  question  of  the  liability 
of  a  municipal  corporation  which  owns  its  school  buildings  and 
has  a  fund  from  whkh  to  provide  for  their  care  will  be  con- 
sidered hereafter. 

Z>.     SOLELY  CORPORATE  DUTIES. 

§  326.  Rule  of  liability  for  negligence. — The  rule  is  settled 
that  when  municipal  corporations  are  not  acting  in  the  exercise 

«*  Curran  v.  Boston,  151  Mass.  es  Maximilian  v.  Mayor,  62  N.  Y. 
505,  24  N.  E.  781,  8  L.  R.  A.  243.  160  (commissioners  of  charities)  ; 
In  this  case  the  court,  after  stating  Brennan  v.  Guardians  of  Limerick 
the  rule  that  municipal  corpora-  Union,  L.  R.  2  C.  L.  42.  As  to  neg- 
tions  are  not  liable  in  private  ac-  ligence  in  care  of  poor-farm,  see 
tions  for  omissions  or  neglect  in  Neff  v.  Wellesley,  148  Mass.  487, 
the  performance  of  a  public  duty  20  N.  E.  Ill,  2  L.  R.  A.  500;  Sy- 
imposed  by  law,  nor  for  that  of  monds  v.  Clay  County,  71  111.  355 
their  servants  engaged  therein,  (injuries  caused  by  fire  in  the  poor- 
said:  "Nor  do  we  perceive  any  rea-  house). 

son  why  the  city  should  be  held  re-  66  Lane  v.   Woodbury,   58   Iowa, 

sponsible  because  some  revenue  is  462. 

derived  from  the  labor  of  the  in-  67  Donovan   v.   Board  of  Educa- 

mates.    It  is  required  by  the  stat-  tion,  85  N.  Y.  117. 

ute  that  these  inmates  should  be  68  Diehm  v.  Cincinnati,  25  Ohio 

kept  at  work,  but  the  institution  St.  305 ;  Hamm  v.  New  York,  70  N. 

is  not  conducted  with  a  view  to  pe-  Y.  460. 

cuniary  profit."     Compare,  Neff  v.  «»  Finch  v.  Board  of  Education, 

Wellesley,  148  Mass.  487,  20  N.  E.  30  Ohio  St.  37. 
Ill,   2  L.   R.    A.  500;    Moulton  v. 
Scarborough,  71  Me.  267,  36  Am. 
Rep.  308. 


330  PUBLIC   CORPORATIONS.  [§327 

of  their  purely  governmental  functions,  for  the  sole  and  im- 
mediate benefit  of  the  public,  but  are  exercising  as  corporations 
private  franchises,  powers  and  privileges,  which  belong  to  them 
for  their  immediate  corporate  benefit,  or  dealing  with  property 
held  by  them  for  their  corporate  advantage,  for  a  profit,  although 
it  inures  ultimately  to  the  benefit  of  the  general  public,  they 
become  liable  for  the  negligent  exercise  of  such  powers  precisely 
as  are  individuals.70 

§  327.  As  owner  of  property  used  for  purposes  of  a  private 
nature. — When  a  corporation  is  the  owner  of  property  which 
it  devotes  principally  or  incidentally  to  purposes  of  a  private 
nature,  such  as  the  making  of  income,  it  is  chargeable  with  the 
same  duties  and  obligations  in  respect  thereto  as  if  it  were  a  pri- 
vate corporation  or  individual.71  Thus,  if  it  so  manages  a  mar- 
ket as  to  render  it  a  nuisance  it  is  liable  in  damages  to  those  who 
are  injured  thereby.72  So,  if  it  maintains  a  farm,  in  order  to 
more  economically  support  its  poor,  it  is  liable  for  injuries  caused 
by  its  negligence  in  connection  therewith.73  A  municipal  cor- 
poration is  not  ordinarily  liable  to  individuals  for  the  manner  in 
which  it  cares  for  a  public  building,  but  if  instead  of  using  the 
building  for  public  purposes  exclusively  it  rents  a  portion  of  it 
for  private  purposes,  and  receives  an  income  therefrom,  it  is 
liable  for  its  negligence  in  and  about  the  building  in  the  same- 
manner  as  though  it  owned  the  property  in  its  private  corporate 
capacity.74  A  city  is  responsible  in  damages  for  the  death  of  a 

™  Shearman    &    Redfield,    Neg.,  to  plans  and  construction,  as  pri- 

§  286 ;  Jones,  Neg.  of  Mun.  Corp.,  vate  individuals, 

ch.   5 ;   Dillon,   Mun.   Corp.,   §  954 ;  73  Moulton    v.    Scarborough,    71 

Welsh  v.  Rutland,  56  Vt.  228,  48  Me.  267,  36  Am.  Rep.  308.    The  in- 

Am.  Rep.  762.  jury  was  caused  by  a  ram  kept  by 

TI  Oliver  v.  Worcester,  102  Mass,  the  town  for  breeding  purposes,  but 

489.     And  see  note  to  Riddell  v.  negligently  allowed  to  run  at  large. 

Proprietors  (7  Mass.  169)  in  5  Am.  Compare,  Hollenbeck  v.  Winnebago 

Dec.  43.  Co.,  95  111.  148,  35  Am.  Rep.  151, 

72  Suffolk  v.  Parker,  79  Va.  660,  and  note ;  French  v.  Boston,  129 

52  Am.  Rep.  640,  and  cases  cited  in  Mass.  592. 

note ;  Weymouth  v.  New  Orleans,  7*  Worden  v.  New  Bedford,  131 

43  La.  Ann.  344.    In  Barron  v.  De-  Mass.  23,  41  Am.  Rep.  185.    Oliver 

troit,  94  Mich.  601,  19  L.  R.  A.  452,  v.   Worcester,  102  Mass.   489.     In 

it  was  held  that  where  no  duty  this  case  a  city  let  rooms  in  the 

rested  upon  the  corporation  to  con-  basement  of  its  city  hall  for  rent, 

struct  a  market,  it  was  liable  for  It  was  held  liable  to  a  person  in> 

the  same  degree  of  care,  in  respect  jured  by  defective  condition  of  the 


§  328]  LIABILITIES  IN   TORT.  331 

child  caused  by  the  dangerous  condition  of  a  lot  owned  by  the 
city  and  but  partially  inclosed  from  the  street.75  When  a  city 
owns  a  cemetery  and  derives  an  income  therefrom,  it  is  liable 
for  damages  caused  by  a  lack  of  due  care  in  its  management.76 

§  328.  Illustrations — Wharves. — When  a  city  owns  and  re- 
ceives an  income  from  wharves  it  must  keep  them  in  a  condi- 
tion suitable  for  use,  and  is  hence  liable  for  damages  resulting 
from  a  want  of  care  in  this  respect.77  This  applies  to  the  ap- 
proaches to  a  dock  or  pier  of  which  the  corporation  has  charge,78 
and  the  duty  is  toward  all  persons  approaching  the  same  from  the 
land  or  from  the  water.79 

§  329.  Private  business  enterprises — Gas  and  water. — When 
a  municipal  corporation  engages  in  a  business  enterprise  or 
undertakes  to  carry  on  any  business  or  perform  any  work  for 
its  citizens  for  compensation,  it  is  held  to  the  same  responsibility 
for  negligence  that  the  law  imposes  upon  private  corporations 
doing  the  same  or  similar  work.80  This  principle  applies  where 
the  corporation  maintains  a  public  wash-house  and  renders  it 
liable  for  injuries  caused  by  defective  machinery  used  therein.81 
So,  if  the  corporation  manufactures  and  sells  gas  for  a  compensa- 
tion, it  is  liable  in  the  same  manner  as  a  private  corporation.82 


surrounding   grounds.     French   v.  78  Barber  v.  Abendroth,  102  N.  Y. 

Quincy,    3    Allen,    9;    Moulton   v.  406. 

Scarborough,   supra;  Neff  v.  79 Kennedy  v.  New  York,  73  N. 

Wellesley,  148  Mass.  487,  20  N.  B.  Y.  365. 

Ill,  2  L.  R.  A.  500.    Degree  of  care  so  Jones,    Neg.    of    Mun.    Corp., 

required  in  construction  of  a  build-  §  41 ;  Thompson,  Neg.,  p.  738 ;  City 

ing,  see  Flori  v.  St.  Louis,  69  Mo.  Council  v.  Lombard,  99  Ga.  282,  25 

341,  33  Am.  Rep.  504.  S.  B.  772.     But  whether  the  rule 

75  The   lot   was   allowed   to   be-  stated  in  the  text  always  applies 
come  flooded  with  water  in  which  where  the  injury  is  caused  by  an 
the  child  was  drowned.     Pekin  v.  error    of    judgment    or    plan,    is 
McMahon,  154  111.  141,  27  L.  R.  A.  doubtful.     See  Child  v.  Boston,  4 
206.    See  Seben  v.  Chicago,  165  111.  Allen,  41. 

371 ;  Omaha  v.  Richards,  49  Neb.  si  Cowley  v.  Sunderland,  6  H.  & 

244.  N.  565. 

76  Toledo  v.   Cone,  41  Ohio   St.  82  Western    Savings    Society    V. 
149.  Philadelphia,  31  Pa.  St.  175. 

7?  Seaman  v.  New  York,  80  N.  Y. 
239 ;  Willey  v.  Allegheny  City,  118 
Pa.  St.  490. 


332 


PUBLIC   CORPORATIONS. 


[§329 


It  has  been  said,83  on  the  authority  of  an  early  New  York  case,84 
that  when  a  municipal  corporation  maintains  water-works  and 
supplies  water  for  a  compensation,  it  is  engaged  in  a  private  en- 
terprise and  liable  in  the  same  manner  as  a  private  corporation.85 
It  has  been  held  that  a  municipal  corporation  is  liable  for  dam- 
ages caused  by  water  escaping  from  the  mains  or  reservoirs 
through  the  negligence  of  the  city;  and  where  the  injury  was 
caused  by  a  defective  water-box  in  a  street  the  court  said : 88 
"The  cause  of  the  accident  was  the  improper  condition  of  the 
water-box  or  the  negligence  of  the  defendant  in  maintaining  it 
in  a  proper  condition.  This  places  the  neglect  upon  the  defend- 
ant, as  the  owner  and  manager  of  the  aqueduct,  and  not  as  having 
the  supervision  of  and  charged  with  the  duty  of  repairing  the 
highway  at  that  point.  For  an  injury  caused  by  the  failure  to 
repair  the  highways  within  the  limits  the  defendant  is  not  liable. 
But  for  an  injury  caused  by  a  failure  to  properly  maintain  its 
aqueduct  it  is  liable."  But  this  liability  cannot  in  any  case  be 
so  extended  as  to  make  the  corporation  liable  for  the  non-per- 
formance or  insufficient  performance  of  a  discretionary  duty. 


ss  See  Jones,  Neg.  of  Mun.  Corp., 
§40. 

s*  Bailey  v.  New  York,  3  Hill  (N. 
Y. ) ,  531.  These  cases  proceed  upon 
the  principle  that  "a  city  or  town 
which  is  charged  with  a  public 
duty  in  consideration  of  valuable 
franchises  is  liable  to  indemnify  an 
individual  who  suffers  any  special 
injury  from  a  neglect  of  the  city; 
and  that  a  city  or  town  which  de- 
rives any  emolument  from  the  ex- 
ercise of  powers  conferred  upon  it 
is  liable  in  like  manner  for  the  neg- 
ligent or  unskilful  exercise  of  the 
powers  by  its  agents  or  for  the 
neglect  of  a  duty  which  is  conse- 
quent upon  having  exercised  them ; 
and  in  such  cases  the  officers  en- 
gaged in  the  execution  of  the  pow- 
ers are  to  be  regarded  as  the  agents 
of  the  city  or  town."  Aldrich  v. 
Tripp,  11  R.  I.  141,  23  Am.  Rep. 
434. 

85  in  Smith  v.  Philadelphia,  81 


Pa.  St.  38,  22  Am.  Rep.  731,  it  was 
held  that  the  amount  of  water  rent 
paid  was  the  measure  of  damages 
which  could  be  recovered  for  the 
failure  of  the  city  to  supply  the 
plaintiff  with  water.  No  damages 
can  be  recovered  for  being  deprived 
of  the  water.  Compare,  Stock  v. 
Boston,  149  Mass.  410. 

seWilkins  v.  Rutland,  61  Vt., 
336.  In  Hand  v.  Brookline,  126 
Mass.  324,  Gray,  C.  J.,  said:  "If 
the  water  escaping  from  the  aque- 
duct by  reason  of  its  negligent  and 
imperfect  construction  had  injured 
buildings  or  property,  there  could 
be  no  doubt  of  the  right  of  the 
owner  to  recover  damages  against 
the  town.  The  fact  that  the  in- 
jury occasioned  was  within  the 
limits  of  a  highway  where  the  per- 
son injured  has  a  lawful  right  to 
be,  affords  no  grounds  for  exempt- 
ing the  town  from  liability."  See 
Grimes  v.  Keene,  52  N.  H.  335. 


§  329]  LIABILITIES  IN   TORT.  333 

Thus,  a  city  is  not  bound  to  protect  the  property  of  its  citizens 
from  fire,  and  it  cannot  be  held  in  damages  for  a  failure  to  sup- 
ply the  necessary  water  to  extinguish  a  fire,  or  for  defects  of  any 
kind  or  character  in  the  hydrants  or  other  machinery  which  it 
provides  for  the  purpose  of  extinguishing  fires.87  The  electrical 
bureau  of  a  city  from  which  it  receives  fees  from  grants  of  privi- 
leges to  private  persons  is  of  such  a  private  nature  as  to  render 
the  city  liable  for  the  negligence  of  its  servants.88 

ST  Mendel  v.  Wheeling,  28  W.  Va.        «»  Bodge  v.  Philadelphia,  167  Pa. 
233 ;  Springfield  F.  &  M.  Ins.  Co.     St.  492. 
v.  Keeseville,  148  N.  Y.  46,  42  N.  E. 
405. 


CHAPTER  XXII. 


MUNICIPAL  DUTIES  RELATING  TO  GOVERNMENTAL  AFFAIRS. 


§  330.  General  statement. 

331.  Common  law  duty  to  repair 

highways. 

332.  Conflicting  rules — Chartered 

municipalities. 

333.  Liability    of     counties    and 

towns. 

334.  Extent  of  duty  to  care  for 

highways. 

335.  Lighting  the  streets. 


§  336.  Necessary  obstructions. 

337.  Illustrations. 

338.  Lack  of  funds  as  a  defense, 

339.  Liability  for  acts  of  licen- 

sees. 

340.  Care  of  sidewalks. 

341.  Obstructions  on  sidewalk. 

342.  Ice  and  snow  on  highways. 

343.  Care  of  bridges. 

344.  Notice. 


§330.  General  statement. — While  public  corporations  are 
not  liable  for  negligence  in  connection  with  the  performance  of 
solely  governmental  duties,  and  are  liable  for  negligence  in  con- 
nection with  solely  municipal  duties,  more  difficult  questions  are 
presented  when  we  come  to  consider  their  liability  for  duties 
which  are  ministerial  in  their  nature  but  which  relate  to  govern- 
mental affairs.  Illustrations  of  duties  of  this  character  are  found 
in  connection  with  highways,  sewers,  bridges  and  other  public 
works.  The  decisions  are  very  conflicting,  and  the  defects  or  un- 
certainties of  the  common  law  have  in  many  cases  been  cured  by 
statutes. 

§331.  Common  law  duty  to  repair  highways.— The  control 
of  highways  rests  primarily  with  the  state,  but  it  is  almost  uni- 
versally imposed  upon  public  corporations  through  which  the 
highways  run.  The  decisions  upon  the  question  of  the  implied 
liability  of  such  corporations  for  injuries  resulting  from  neglect 
to  perform  the  duty  of  keeping  the  highways  in  reasonably  safe 
condition  are  so  conflicting  that  little  more  can  be  done  than  to 
classify  them.  It  will  be  found  that  the  liability  or  non-liability 
is  made  to  depend  upon  the  nature  of  the  corporation  or  the  na- 
ture of  the  duty  to  be  performed,  and  the  means  within  the  con- 
trol of  the  corporation  for  performing  the  duty.  The  student 
must  in  all  cases,  however,  consult  the  statutes  of  the  state. 

334 


§332] 


MUNICIPAL   DUTIES. 


335 


§332.    Conflicting  rules — Chartered  municipalities. — In  the 

NewEngland  states  it  is  almost  universally  held  that  no  implied 
liability  attaches  to  a  county,  town  or  even  a  chartered  munici- 
pality for  failing  to  keep  the  highways  in  proper  condition.  In 
the  leading  Massachusetts  case,1  the  authorities  are  elaborately 
discussed  by  Chief  Justice  Gray  and  the  statement  made  that  such 
liability  is  not  recognized  by  the  English  cases.  This  conclusion, 
however,  has  been  criticised,2  and  there  are  strong  reasons  for 
believing  that  the  common  law,  as  declared  by  the  English  courts, 
was  otherwise.  What  may  be  called  the  rule  of  the  case  of  Rus- 
sell v.  Men  of  Devon,  as  construed  by  these  Massachusetts  cases, 
has  been  followed  in  a  number  of  states.3  But  the  implied  lia- 


iHill  v.  Boston,  122  Mass.  344, 
23  Am.  Rep.  332.  See  the  early 
cases  of  Riddell  v.  Proprietors  of 
Locks,  7  Mass.  169;  Mower  v.  Lei- 
cester, 9  Mass.  237. 

2  This  doctrine  rests  upon  the 
authority  of  Russell  v.  Men  of  De- 
von, 2  T.  R.  667.  The  early  Eng- 
lish authorities  are  reviewed  in 
Jones  on  Neg.  of  Mun.  Corp., 
§§15-19.  In  Thomas  v.  Sorrell, 
Vaughan,  330,  decided  in  the  lat- 
ter half  of  the  seventeenth  cen- 
tury, we  find  the  following  state- 
ment by  Chief  Justice  Vaughan: 
"And  note,  if  a  man  have  particu- 
lar damage  by  a  foundrous  way, 
he  is  generally  without  remedy, 
though  the  nuisance  is  to  be  pun- 
ished by  the  king.  The  reason  is, 
because  a  foundrous  way,  a  de- 
cayed bridge  or  the  like,  are  com- 
monly to  be  repaired  by  some  town- 
ship, vill,  hamlet  or  a  county,  who 
are  not  corporate,  and  therefore  no 
action  lies  against  them  for  a  par- 
ticular damage,  but  their  neglects 
are  to  be  presented,  and  they  pun- 
ished by  fine  to  the  king.  But  if  a 
particular  person  or  body  corporate 
be  to  repair  a  certain  highway  or 
portion  of  it,  or  a  bridge,  and  a 
man  is  endamaged  particularly  by 
the  fouudrousness  of  the  way  or 


decay  of  the  bridge,  he  may  have 
his  action  against  the  person  or 
body  corporate  who  ought  to  re- 
pair, for  his  damage,  because  he 
can  bring  his  action  against  them ; 
but  where  there  is  no  person 
against  whom  to  bring  his  action, 
it  is  as  if  a  man  be  damaged  by 
one  that  cannot  be  known." 

3  Fort  Smith  v.  York,  52  Ark.  84 ; 
Winbigler  v.  Los  Angeles,  45  Cal. 
36 ;  Chope  v.  Eureka,  78  Cal.  588,  4 
L.  R.  A.  327,  two  judges  dissenting. 
A  number  of  authorities  are  cited 
in  note  to  this  case.  Beardsley  v. 
Hartford,  50  Conn.  529,  47  Am. 
Dec.  677;  Aldrich  v.  Gorham,  77 
Me.  287;  Moore  v.  Abbot,  32  Me. 
46;  Detroit  v.  Blackeby,  21  Mich. 
84 ;  Eastman  v.  Meredith,  36  N.  H. 
284 ;  Elliott  v.  Lisbon,  57  N.  H.  27 ; 
Pray  v.  Jersey  City,  32  N.  J.  Law, 
394;  Wild  v.  Paterson,  47  N.  J. 
Law,  406;  Wixon  v.  Newport,  13 
R.  I.  454,  43  Am.  Rep.  35  (injury 
caused  by  defect  in  school-house)  ; 
Young  v.  Charleston,  20  S.  C.  116, 
47  Am.  Rep.  827;  Wilkins  v.  Rut- 
land, 61  Vt.  336;  Welsh  v.  Rutland, 
56  Vt.  228;  Cairncross  v.  Pewau- 
kee,  78  Wis.  66,  10  L.  R.  A.  473; 
Robinson  v.  Rohr,  73  Wis.  436,  2 
L.  R.  A.  366. 


336 


PUBLIC   CORPORATIONS. 


[§333 


bility  of  chartered  municipalities,  although  not  generally  of  pub- 
lic gw<m'-corporations,  for  negligence  in  the  care  of  highways,  is 
recognized  by  a  strong  current  of  authority  in  the  states  outside 
of  New  England.4  This  doctrine  has  been  adopted  by  the  su- 
preme court  of  the  United  States,5  which  will,  however,  follow 
the  decisions  of  the  highest  court  of  the  state  from  which  an  ap- 
peal is  taken.6 

§  333.  Liability  of  counties  and  towns. — By  a  very  decided 
weight  of  authority,  there  is  no  liability  on  the  part  of  counties 
and  townships  for  the  care  of  highways  unless  such  liability  is 
created  by  statute.7  In  some  states  there  is  no  liability  even  when 


*  Dillon,  Mun.  Corp.  (4th  ed.), 
§  1017 ;  Jones,  Neg.  of  Mun.  Corp., 
§  57 ;  Smoot  v.  Wetumpka,  24  Ala. 
112 ;  Montgomery  v.  Wright,  72  Ala. 
411;  Denver  v.  Dunsmore,  7  Colo. 
328;  Denver  v.  Williams,  12  Colo. 
475;  Larson  v.  Grand  Forks,  3 
Dak.  307 ;  Anderson  v.  Wilming- 
ton, 8  Houston  (Del.),  516,  19  Atl. 
Rep.  509 ;  Tallahassee  v.  Fortune, 
3  Fla.  19,  52  Am.  Dec.  358 ;  Bruns- 
wick v.  Braxton,  70  Ga.  193;  An- 
derson v.  East,  117  Ind.  126,  2  L. 
R.  A.  325;  Knightstown  v.  Mus- 
grove,  116  Ind.  121,  9  Am.  St.  827 ; 
Goshen  v.  England,  119  Ind.  368,  5 
L.  R.  A.  253;  Protestant  Episcopal 
Church  v.  Anamosa,  76  Iowa,  538, 
2  L.  R.  A.  606;  Chicago  v.  Keefe, 
114  111.  222;  Kansas  City  v.  Ber- 
mingham,  45  Kan.  212,  25  Pac. 
569 ;  Topeka  v.  Tuttle,  5  Kan.  186 ; 
Greenwood  v.  Louisville,  13  Ky. 
226 ;  Cline  v.  Crescent  City  R.  Co., 
41  La.  Ann.  1031,  6  So.  Rep.  851; 
Baltimore  v.  Marriott,  9  Md.  160; 
Kennedy  v.  Cumberland,  65  Md. 
514;  Welter  v.  St.  Paul,  40  Minn. 
460,  12  Am.  St.  752,  and  note; 
Shartle  v.  Minneapolis,  17  Minn. 
308  (Gil.  284)  ;  Whitfield  v.  Meri- 
dian, 66  Miss.  570,  4  L.  R.  A.  834, 
14  Am.  St.  596;  Haniford  v.  Kan- 
sas City,  103  Mo.  172;  Maus  v. 


Springfield,  101  Mo.  613,  20  Am. 
St  634;  Sullivan  v.  Helena,  10 
Mont.  134,  25  Pac.  94;  Ponca  v. 
Crawford,  18  Neb.  551,  28  Neb.  762. 
8  Am.  St.  144;  Lincoln  v.  Smith, 
29  Neb.  228.  This  case  is  elabo- 
rately annotated  in  10  L.  R.  A.  735 ; 
McNally  v.  Cohoes,  127  N.  Y.  350 ; 
Ehrgott  v.  New  York,  96  N.  Y.  264 ; 
McDonough  v.  Virginia  City,  6 
Nev.  431 ;  Bunch  v.  Edenton,  90  N. 
C.  431 ;  Shelby  v.  Clagett,  46  Ohio 
St.  549;  Cleveland  v.  King,  132  U. 
S.  295 ;  Sheridan  v.  Salem,  14  Oreg. 
328 ;  Farquar  v.  Roseburg,  18  Oreg. 
271,  17  Am.  St.  732,  note;  Brook- 
ville  v.  Arthurs,  130  Pa.  St.  501; 
Knoxville  v.  Bell,  12  Lea  (Tenn.), 
157;  Galveston  v.  Posnainsky,  62 
Tex.  118 ;  Levy  v.  Salt  Lake  City, 
3  Utah,  63 ;  McCoull  v.  Manchester, 
85  Va.  579,  2  L.  R.  A.  691;  Mor- 
gan v.  Morley,  1  Wash.  464 ;  Phil- 
lips v.  Ritchie  County,  31  W.  Va. 
477. 

5  District  of  Columbia  v.  Wood- 
bury,  136  U.  S.  450 ;  Barnes  v.  Dis- 
trict of  Columbia,  91  U.  S.  540. 

6  Detroit  v.   Osborne,   135  U.   S. 
492. 

7  Hill  v.  Boston,  122  Mass.  344; 
Templeton     v.     Linn     County,    22 
Oreg.  313,  15  L.  R.  A.  730;  Bates 
v.  Rutland,  62  Vt.  178,  9  L.  R.  A. 


§334] 


MUNICIPAL   DUTIES. 


337 


the  duty  to  repair  rests  upon  such  corporation,  as  this  duty 
is  purely  governmental.8  The  rule  of  non-liability  of  counties 
and  towns  is  adopted  in  many  states  where  the  decisions  impose 
the  liability  upon  municipal  corporations  proper.9  The  distinc- 
tion between  the  liability  of  municipal  corporations  and  public 
#«<m'-corporations  in  this  respect  is  well  established,  although  it 
rests  upon  very  unsatisfactory  reasons.10  It  is  not  universal, 
however,  as  some  states  impose  a  liability  upon  counties11  and 
even  townships,12  especially  in  connection  with  the  care  of 
bridges.13  Of  course  there  is  no  corporate  liability  when  the 
duty  to  care  for  highways  is  imposed  upon  certain  officials  and 
not  upon  the  corporation.  Under  such  circumstances  the  cor- 
poration is  not  liable  for  the  negligence  of  the  officers  unless  made 
so  by  statute.14 

§334.  Extent  of  duty  to  care  for  highways. — Where  the 
law  imposes  the  duty  to  care  for  streets  upon  municipal  cor- 
porations, it  is  bound  to  exercise  reasonable  care  to  see  that 
they  are  in  safe  condition,15  but  it  is  not  an  insurer  of  their 

363 ;  Perry  v.  John,  79  Pa.  St.  412 ; 
Peters  v.  Fergus  Falls,  35  Minn. 
549;  Dosdall  v.  Olmsted  Co.,  30 
Minn.  96;  Young  v.  Charleston,  20 
S.  C.  116,  47  Am.  Rep.  827 ;  Elliott, 
Roads  and  Streets,  p.  42.  In  Dil- 
lon, Mun.  Corp.,  II,  §997,  it  is 
said:  "In  the  United  States  there 
is  no  common-law  obligation  rest- 
ing upon  gtttm-corporations  such 
as  counties,  townships  and  New 
England  towns  to  repair  highways, 
streets  or  bridges  within  their  lim- 
its, and  they  are  not  obliged  to  do 
so  unless  by  force  of  statute." 

sAltnow  v.  Town  of  Libley,  30 
Minn.  186,  44  Am.  Rep.  191;  Still- 
ing v.  Thorp,  54  Wis.  528. 

a  Thompson,  Neg.,  I,  p.  615 ;  Dil- 
lon, Mun.  Corp.,  I,  §1023;  Jones, 
Neg.  Mun.  Corp.,  ch.  8.  Conflicting 
authorities  are  cited  in  a  note  to 
Eastman  v.  Clackamas  County,  32 
Fed.  24. 

10  Elliott,  Roads  and  Streets,  p. 
319,  and  cases  cited. 


11  Shadier  v.  Blair  County,  136 
Pa.  St.  488 ;  Anne  Arundell  County 
v.  Duckett,  20  Md.  468. 

12  Dean   v.   New   Milford  Tp.,  5 
W.  &  S.  (Pa.)  545. 

is  Howard  County  Commission- 
ers v.  Legg,  93  Ind.  523,  47  Am. 
Rep.  390;  Wilson  v.  Jefferson 
County,  13  Iowa,  181.  But  see 
Green  v.  Harrison  County,  61  Iowa, 
311. 

I*  Monk  v.  New  Utrecht,  104  N. 
Y.  552 ;  Reardon  v.  St.  Louis  Coun- 
ty, 36  Mo.  555;  Scales  v.  Chatta- 
hoochee  County,  41  Ga.  225. 

is  Raymond  v.  Lowell,  6  Cush. 
(Mass.)  524,  53  Am.  Dec.  57,  note. 
When  the  city  authorizes  a  rail- 
way company  to  occupy  a  street 
which  is  thereby  rendered  in  an 
unsafe  condition,  a  person  who  is 
injured  may  proceed  against  the 
city  or  the  railway  company.  The 
primary  liability  is  on  the  city. 
Zanesville  v.  Fannan,  53  Ohio  St. 
605,  53  Am.  St.  664 ;  Eyler  v.  Com- 


22 


338 


PUBLIC   CORPORATIONS. 


[§334 


safety.16  The  street  must  be  public,17  and  under  the  control  of 
the  corporation.18  It  must  have  been  accepted  by  the  corpora- 
tion after  being  dedicated  by  the  owner  of  the  land.19  If  the 
city  has  assumed  the  care  of  a  street,  it  is  responsible  thereafter 
for  its  condition,  although  the  street  may  not  be  technically 
under  the  care  of  the  city.  The  entire  width  of  the  street  must 
be  kept  in  a  safe  condition.20  This  rule,  however,  does  not 
apply  to  a  country  highway,  where  the  duty  extends  only  to  the 
traveled  part  of  the  road.21  There  may  be  instances,  however, 
where  the  corporation  would  be  liable  for  injuries  resulting  to 
one  traveling  outside  of  the  limits  of  the  highway;  as,  "where 
there  is  no  visible  boundary  to  the  line  of  the  street  and  a  por- 
tion of  the  roadway  traveled  on  is  so  near  the  actual  line  (al- 
though really  outside  thereof)  as  to  induce  the  belief  in  any 
one  exercising  reasonable  care  that  he  is  within  such  line."22 


missioners,  49  Md.  257,  33  Am.  Rep. 
249.  A  railway  which  has  torn  up 
a  street  must  restore  it  to  its  for- 
mer condition,  and  if  it  fails  to  do 
so  it  is  liable  for  damages  for  in- 
juries. Louisville,  etc.  R.  Co.  v. 
Pritchard,  131  Ind.  564,  11  Am.  St 
395,  and  cases  cited  in  note;  State 
v.  St.  Paul,  etc.  R.  Co.,  35  Minn. 
131,  59  Am.  Rep.  313. 

16  Hunt  v.  New  York,  109  N.  Y. 
134 ;  Burns  v.  Bradford,  137  Pa.  St 
361,  11  L.  R.  A.  726.  A  municipal 
corporation  is  not  required  to  keep 
its  walks  and  streets  in  such  con- 
dition as  to  render  an  accident  im- 
possible, but  merely  to  use  reason- 
able care  and  prudence  in  detect- 
ing and  remedying  any  defect 
which  it  might  fairly  anticipate 
would  be  likely  to  cause  an  acci- 
dent Butler  v.  Oxford,  186  N.  Y. 
444. 

IT  Carpenter  v.  Cohoes,  81  N.  Y. 
21,  37  Am.  Rep.  468 ;  Veale  v.  Bos- 
ton, 135  Mass.  187. 

is  Taylor  v.  Woburn,  130  Mass. 
494;  Hart  v.  Red  Cedar,  63  Wis. 
634 ;  Will  v.  Village  of  Mendon,  108 


Mich.,  251,  66  N.  W.  58;  City  of 
Chadron  v.  Glover,  43  Neb.  732,  62 
N.  W.  62. 

i»  Ivory  v.  Deerpark,  116  N.  Y. 
476;  Estelle  v.  Lake  Crystal,  27 
Minn.  243. 

20  Monongahela  City  v.  Fischer, 
111   Pa.    St   9.     The   corporation 
must  keep  the  streets  in  the  out- 
skirts of  the  city  clear  for  such  a 
width  as  the  public  necessity  and 
convenience    require.      Village    of 
Rankin  v.  Smith,  63  111.  App.  522. 

21  Perkins  v.  Fayette,  68  Me.  152 ; 
Fitzgerald  v.  Berlin,  64  Wis.  203; 
Campbell  v.  Race,  7  Cush.  408. 

22  Jewhurst  v.  Syracuse,  108  N. 
Y.  303.    A  city  must  use  reasonable 
care  to  prevent  pedestrians  from 
falling  into  excavations  on  private 
property  adjacent  to  the  sidewalk. 
Wiggin  v.  St  Louis,  135  Mo.  558. 
But   there  is   no   liability   for   in- 
juries  suffered  by  one  who   goes 
outside   of   an    unfenced   highway 
when  the  whole  of  the  highway  is 
in  safe  condition.     McHugh  v.  St. 
Paul,  67  Minn.  441,  70  N.  W.  5, 


§  335]  MUNICIPAL  DUTIES.  339 

That  part  of  the  road  which  is  kept  open  to  travel  must  be  kept 
in  a  reasonably  safe  condition,23  although  in  order  to  do  so  it 
may  be  necessary  to  protect  the  public  from  injury  by  obstruc- 
tions or  excavations  on  adjoining  land.24  It  is  for  the  jury  to 
determine  whether,  under  the  circumstances  of  the  particular 
case,  the  obstruction  was  of  such  a  nature  that  the  highway 
was  not  in  a  suitable  state  of  repair,  and  whether  the  corpora- 
tion was  negligent  in  not  removing  the  obstruction.25 

§  335.  Lighting  the  streets. — Where  a  city  is  required  by  a 
statute  or  by  its  charter  to  light  its  streets,  it  is,  of  course,  liable 
for  injuries  caused  by  its  neglect  to  do  so;  but  where  no  such 
duty  is  imposed  on  it  by  the  legislature,  it  is  not  liable  for  omit- 
ting to  light  the  streets,26  although  the  fact  that  a  street  is  not 
lighted  may  be  material  upon  the  question  of  negligence  where 
it  was  partially  obstructed  or  out  of  repair.27  It  is  the  duty, 
however,  of  the  corporation  to  place  lights  near  obstructions  or 
excavations  temporarily  placed  in  the  streets.28 

§336.  Necessary  obstructions. — There  are  many  obstruc- 
tions which  may  be  placed  or  allowed  to  be  placed  in  a  public 
street  which  do  not  constitute  defects  or  nuisances.  If  they  do 
not  unnecessarily  interfere  with  the  primary  purpose  for  which 
streets  are  dedicated,  they  do  not  render  the  way  unsafe  in  the 
eye  of  the  law.  Thus  hydrants.29  hitching  posts,30  door-steps  31 
and  stepping-stones  32  are  not  in  themselves  objects  which  render 

23  Aston    v.    Newton,    134    Mass.  27  Elliott,  Roads  and  Streets,  p. 

507 ;     Stafford    v.     Oskaloosa,     57  457 ;  Lyon  v.  Cambridge,  136  Mass. 

Iowa,  748.  419. 

2*  Rooney  v.  Randolph,  128  Mass.  28  McCoull  v.  Manchester,  85  Va. 

580.  579;  Wilson  v.  White,  71  Ga.  506, 

25  Hubbard  v.  Concord,  35  N.  H.  51   Am.  Rep.  269.     In  Sinclair  v. 

52,    69    Am.    Dec.    520;    Seeley   v.  Baltimore,  59  Md.  592,  it  was  held 

Litchfield,   49   Conn.    134,   44   Am.  that  the  city  need  not  place  lights 

Rep.  213;  Michigan  City  v.  Boeck-  upon  building  material  which  has 

ling,   122   Ind.  39 ;   Goodfellow   v.  been  left  in  the  street. 

New    York,    100    N.    Y.    15 ;    Fox-  29  Ring  v.  Cohoes,  77  N.  Y.  83. 

worthy  v.  Hastings,  25  Neb.  133 ;  3°  Ma  comber     v.     Taunton,     100 

Hill  v.  Fond  du  Lac,  56  Wis.  242.  Mass.  255. 

2«  Dillon,  Mun.  Corp.,  II,  §  1010 ;  si  Cushing  v.  Boston,  128  Mass. 

Freeport    v.    Isbell,    83    111.    440;  330. 

Gould   v.    Topeka,    32    Kan.    485 ;  sa  Kingston  v.  Dubois,  102  N.  Y. 

Cleveland  v.  King,  132  U.  S.  295;  219. 
McHugh  v.  St.  Paul,  67  Minn.  441, 
70  N.  W.  5. 


340 


PUBLIC  CORPORATIONS. 


[§337 


a  street  unsafe.  The  public  must  adapt  itself  to  the  fact  of  their 
existence,  and  if  they  are  properly  located  and  cared  for  the 
city  is  not  liable  for  injuries  occasioned  by  them.  The  same  rule 
applies  to  car  tracks  and  merchandise  and  building  material  tem- 
porarily placed  in  a  street.33  They  constitute  obstructions,  but 
they  are  necessary,  and  when  properly  guarded  34  may  be  allowed 
to  remain  in  a  street  for  a  reasonable  time  35  without  rendering 
the  municipality  liable  for  injuries  occasioned  thereby.36  But 
unnecessary  obstructions  must  not  be  allowed  to  remain  in  the 
street,  as  the  city  must  ' '  keep  all  streets,  sidewalks  and  crossings 
in  a  reasonably  safe  condition  and  free  from  all  unnecessary  and 
dangerous  obstruction,  so  as  not  to  endanger  the  persons  of  those 
lawfully  using  the  same."37  The  size  or  location  of  the  object 
is  immaterial  if  it  renders  the  street  unsafe  38 

§337.  Illustrations. — Municipal  corporations  have  been 
held  liable  for  injuries  occasioned  by  negligently  leaving  a 
road  scraper  in  a  street,39  wires  across  a  highway,40  mud 
piled  in  a  street  and  allowed  to  freeze,41  projecting  nails  in  a 
plank  street,42  a  projecting  water  plug,43  a  wagon  standing  in 
the  street  under  a  license,44  unguarded  holes  or  excava- 


ss  Callanan  v.  Gilman,  107  N.  Y. 
360. 

34  Bauer  v.  Rochester,  35  N.  Y. 
St.  Rep.  959;  Olson  v.  Chippewa 
Falls,  71  Wis.  558;  Wilson  v. 
White,  71  Ga.  506;  51  Am.  Rep. 
269. 

as  Pettengill  v.  Yonkers,  116  N. 
Y.  558. 

so  Cleveland  v.  King,  132  U.  S. 
295;  Nolan  v.  King,  97  N.  Y.  565; 
Klatt  v.  Milwaukee,  53  Wis.  196. 
A  corporation  is  not  relieved  from 
liability  by  the  fact  that  the  person 
who  was  allowed  to  place  the  ob- 
struction in  the  street  agreed  to 
protect  the  public.  Cleveland  v. 
King,  supra;  Farquar  v.  Roseburg, 
18  Oreg.  271,  17  Am.  St.  272; 
Boucher  v.  New  Haven,  40  Conn. 
456. 

siGlantz  v.  Bend,  106  Tnd.  305; 
Village  of  Ponca  v.  Crawford,  23 


Neb.  662,  8  Am.  St.  144,  note. 

38  McCool   v.   Grand   Rapids,   58 
Mich.  41. 

39  Whitney  v.  Town  of  Ticonder- 
oga,  127  N.  Y.  40,  27  N.  E.  403. 

40  Hayes  v.  Hyde  Park,  153  Mass. 
514,  12  L.  R.  A.  249. 

41  Champaign  v.   Jones,  132  111. 
304. 

42  Michigan    City    v.    Boeckling, 
122  Ind.  39. 

43  Scranton  v.  Catterson,  94  Pa. 
St.  202. 

44  Cohen  v.  New  York,  113  N.  Y. 
532.     In  this  case  the  court  said: 
"We  do  not  say  that  this  principle 
of  responsibility  would  render  the 
city  liable  in  every  case  of  a  mis- 
taken exercise  of  power  authoriz- 
ing the  use  or  occupancy  of  a  pub- 
lic street  by  an  individual.     We 
confine  ourselves  to  the  decision  of 
this  case,  and  we  simply  say  that 


§337] 


MUNICIPAL   DUTIES. 


341 


tions,45  no  matter  by  whom  made,46  a  hole  caused  by  the 
breaking  of  a  water  pipe,47  an  open  culvert,48  slippery  objects 
under  certain  circumstances,49  excavations  and  embankments 
adjoining  the  street  which  render  it  unsafe,50  a  collision  caused 
by  the  narrowing  of  a  street  by  an  embankment.51  Obstruc- 
tions which  have  a  natural  tendency  to  frighten  horses 
being  driven  along  the  highway  are  generally  viewed 
as  defects,  and  the  corporation  held  liable  for  injuries 
resulting  therefrom.52  As  a  general  rule  no  distinction  is  made 


when  the  city,  without  the  pre- 
tense of  authority,  and  in  direct 
violation  of  a  statute,  assumes  to 
grant  to  a  private  individual  the 
right  to  obstruct  the  public  high- 
way while  in  the  transaction  of  his 
private  business,  and  for  such  priv- 
ilege takes  compensation,  it  must 
be  regarded  as  itself  maintaining  a 
nuisance  so  long  as  the  obstruc- 
tion is  continued  by  reason  of  and 
under  such  license." 

45  Barr  v.  Kansas  City,  105  Mo. 
550. 

46  Savannah  v.  Donnelly,  71  Ga. 
258. 

47  Hopkins    v.     Ogden    City,    5 
Utah,  390,  16  Pac.  596. 

48  O'Gorman  v.  Morris,  26  Minn. 
267. 

49Cromarty  v.  Boston,  127  Mass. 
329,  34  Am.  Rep.  381. 

so  Barnes  v.  Chicopee,  138  Mass. 
67,  52  Am.  Rep.  259.  In  Puffer  v. 
Orange,  122  Mass.  389,  23  Am.  Rep. 
368,  the  court  said :  "A  town  is 
bound  to  erect  barriers  or  railings 
where  a  dangerous  place  is  in  such 
close  proximity  to  the  highway  as 
to  make  traveling  on  the  highway 
unsafe.  But  it  is  not  bound  to  do 
so  to  prevent  travelers  from  stray- 
ing from  the  highway,  although 
there  is  a  dangerous  place  at  some 
distance  from  the  highway  which 
they  may  reach  by  so  straying." 
Hudson  v.  Marlborough,  154  Mass. 
218,  28  N.  E.  147. 


si  Fopper  v.  Wheatland,  59  Wis. 
623;  Flagg  v.  Hudson,  142  Mass. 
280. 

52  Morse  v.  Richmond,  41  Vt.  435, 
98  Am.  Dec.  600  (statutory  duty- 
see  an  elaborate  note  to  this  case)  ; 
Dimock  v.  Suffield,  30  Conn.  129; 
Rushville  v.  Adams,  107  Ind.  475, 
57  Am.  Rep.  124 ;  Cairncross  v.  Pe- 
waukee,  78  Wis.  66,  10  L.  R.  A. 
473;  Campbell  v.  Stillwater,  32 
Minn.  308 ;  Thompson,  Neg.,  §  1011 ; 
Shearman  &  Red.  Neg.,  §  169.  The 
city  is  liable  if  the  object  has  a 
natural  tendency  to  frighten  horses 
of  ordinary  gentleness  and  train- 
ing. Piollet  v.  Simmers,  106  Pa. 
St.  95,  51  Am.  Rep.  496.  For  con- 
trary decisions,  see  Bowes  v.  Bos- 
ton, 155  Mass.  344,  15  L.  R.  A.  365, 
and  Agnew  v.  Corunna,  55  Mich. 
428,  54  Am.  Rep.  388  (boulders  in 
street).  A  steam-engine,  as  a 
means  of  locomotion  in  a  highway, 
is  not  necessarily  a  nuisance. 
Where  the  use  of  one  frightens 
horses  the  right  of  action  for  inju- 
ries will  depend  upon  the  question 
of  negligence.  Macomber  v.  Nich- 
ols, 34  Mich.  212,  22  Am.  Rep.  522. 
But  see  Stanley  v.  Davenport,  54 
Iowa,  463,  37  Am.  Rep.  216.  In 
Omaha  v.  Richards,  49  Neb.  244, 
the  court  said :  "A  case  quite  analo- 
gous in  principle  to  the  one  at  bar 
is  City  of  Chicago  v.  Hesing,  S3  111. 
204.  That  was  an  action  to  recover 
damages  for  the  death  of  a  child 


342 


PUBLIC   CORPORATIONS. 


[§338 


between  cases  where  the  obstruction  or  defect  was  due  to  the  act 
of  the  corporation  or  the  act  of  private  individuals.  The  right  of 
action  against  the  city  rests  upon  the  duty  of  the  city  to  keep  the 
streets  in  a  reasonably  safe  condition,53  and  this  duty  cannot 
be  shifted  upon  the  property  owners. 

§  338.  Lack  of  funds  as  a  defense. — A  public  corporation  is 
not  liable  for  damages  caused  by  its  failure  to  repair  a  street 
where  it  has  neither  the  means  nor  the  corporate  power  to  pro- 
cure the  means  necessary  for  making  such  repairs;  54  but  "want 
of  funds  to  repair  a  street  will  not  excuse  a  city  for  its  neglect  in 
regard  to  them  unless  it  has  exhausted  all  the  means  at  its  com- 
mand to  raise  funds  or  to  make  the  repairs  and  unless  the  ac- 
cident could  not  have  been  prevented  by  guards  or  signs. "  55  If 
is  has  not  the  means  of  keeping  the  street  in  proper  condition, 


about  four  years  old."  The  third 
paragraph  of  the  syllabus  reads 
thus :  "It  is  gross  negligence  on  the 
part  of  the  city  to  leave  a  ditch 
filled  with  water  about  five  feet 
deep  in  a  public  and  frequented 
street  bordering  on  a  sidewalk 
without  any  guards  to  prevent  chil- 
dren from  falling  into  the  same, 
and  if  a  child  is  drowned  by  fall- 
ing into  the  same  the  city  will  be 
liable."  The  same  principle  was 
held  in  Village  of  Carterville  v. 
Cook,  129  111.  152 ;  Brennan  v.  City 
of  St.  Louis,  92  Mo.  482;  City  of 
Indianapolis  v.  Emmel  marf,  108 
Ind.  530;  Nichols  v.  City  of  St 
Paul,  44  Minn.  494 ;  Hawley  v.  City 
of  Atlantic,  92  Iowa,  172,  60  N.  W. 
519;  Reed  v.  City  of  Madison,  83 
Wis.  171 ;  Gibson  v.  Huntington,  38 
W.  Va.  177.  See,  also,  for  a  simi- 
lar case,  Seben  v.  City  of  Chicago, 
165  111.  371.  In  Kies  v.  Erie,  169 
Pa.  St.  598,  it  appears  that  the 
plaintiff  was  injured  by  the  large 
doors  of  a  fire-engine  house  sud- 
denly opening  out,  and  the  court 


said:  "If  the  operation  of  these 
doors  with  reasonable  care  would 
have  provided  against  danger  and 
accident  to  the  passers-by,  the  city 
is  liable.  If  the  necessary  and  nat- 
ural and  probable  operation  of 
these  doors  was  dangerous,  even 
though  accompanied  by  the  use  of 
ordinary  care  on  the  part  of  the 
employees,  the  city  is  liable  for 
such  results." 

63  But  see  Baltimore  v.  O'Don- 
nell,  53  Md.  110. 

5*Hines  v.  Lockport,  50  N.  Y. 
236;  Weed  v.  Ballston  Spa,  76  N. 
Y.  329;  Ivory  v.  Deerpark,  116  N. 
Y.  476;  Whitfield  v.  Meridian,  66 
Miss.  570,  14  Am.  St.  596.  The  de- 
fense of  want  of  means  to  make  re- 
pairs must  be  pleaded.  Netzer  v. 
Crookston,  59  Minn.  244. 

ss  Jones,  Neg.  of  Mun.  Corp., 
§  75 ;  Dillon,  Mun.  Corp.,  II,  §  1017 ; 
Elliott,  Roads  and  Streets,  p.  445; 
Delger  v.  St.  Paul,  14  Fed.  567; 
Birmingham  v.  Lewis,  92  Ala.  352, 
9  So.  243 ;  Lord  v.  Mobile,  113  Ala. 
360,  21  So.  366. 


§339] 


MUNICIPAL  DUTIES. 


it  should  either  close  the  street  or  protect  the  public  by  means  of 
guards  or  other  proper  and  necessary  signs.56 

§  339.  Liability  for  acts  of  licensees. — The  rule  is  that  a 
municipal  corporation  is  not  liable  for  injuries  resulting  from 
the  acts  of  its  licensees  unless  the  license  is  granted  without 
authority57  or  the  acts  so  licensed  are  admittedly  dangerous.58 
The  liability  in  such  cases  must  be  distinguished  from  the  mere 
failure  to  prevent  the  doing  of  an  act  which  is  an  exercise  of  legis- 
lative discretion.59  The  corporation  may  exercise  its  discretion 
on  the  question  of  forbidding  certain  conduct  without  being 
liable  for  damages  which  would  have  been  avoided  had  the  con- 
duct been  forbidden.60  Thus,  the  corporation  is  not  liable  be- 
cause it  fails  to  prevent  persons  from  coasting  on  streets,  although 
such  a  use  of  the  streets  is  manifestly  dangerous  to  the  public.61 
But  a  city  may  be  liable  if,  without  authority,  it  authorizes  a 
wagon  to  stand  in  the  street 62  or  a  steam  motor  to  use  the 
street.63 


se  Monk  v.  New  Utrecht,  104  N. 
Y.  552.  Knowledge  that  there  is  no 
money  in  the  treasury  by  one  who 
is  hurt  by  a  defective  sidewalk  is 
not  notice  of  the  defects.  Village 
of  Ponca  v.  Crawford,  23  Neb.  662, 
8  Am.  St.  144. 

or  Cohen  v.  New  York,  113  N.  Y. 
532. 

os  As  by  authorizing  a  lunatic  to 
sell  gunpowder.  Cole  v.  Nashville, 
4  Sneed  (Tenn.),  162.  In  Wheeler 
v.  Plymouth,  116  Ind.  158,  9  Am. 
St.  837,  18  N.  E.  532,  the  court 
said:  "It  is  quite  well  settled  that 
a  municipal  corporation  is  not 
liable  for  the  acts  of  its  licensees, 
unless  it  is  shown  that  they  were 
authorized  to  perform  an  act  dan- 
gerous in  itself."  The  cases  can- 
not be  reconciled,  but  the  test 
seems  to  be,  Did  the  city  merely 
fail  to  prohibit  the  act  by  appro- 
priate legislation  or  for  the  time 
being  suspend  its  legislation,  and 
thus,  by  failing  to  prohibit,  consent 
(Lincoln  v.  Boston,  148  Mass.  578, 
3  L.  R.  A.  357),  or  did  it  affirma- 
tively authorize  the  act?  If  the 


authority  given  is  in  general  terms, 
it  will  be  presumed  that  the  licen- 
see will  exercise  due  care  and  the 
city  will  not  be  responsible  for  his 
negligence  (Little  v.  Madison,  49 
Wis.  605)  ;  but  if  the  city  licenses 
a  dangerous  act,  or  acts  beyond  its 
general  authority  in  licensing  an 
act  which  it  has  no  power  to  li- 
cense, it  is  liable  for  damages  re- 
sulting therefrom. 

so  Carthage  v.  Frederick,  122  N. 
Y.  268,  19  Am.  St.  490. 

eo  Little  v.  Madison,  49  Wis.  605. 

eiBurford  v.  Grand  Rapids,  53 
Mich.  98,  51  Am.  Rep.  105  (under 
permission  of  an  ordinance)  ;  La- 
fayette v.  Timberlake,  88  Ind.  330 ; 
Schultz  v.  Milwaukee,  49  Wis.  254, 
35  Am.  Rep.  782 ;  Calwell  v.  Boone, 
51  Iowa,  687,  33  Am.  Rep.  154; 
Steele  v.  Boston,  128  Mass.  583; 
Wilmington  v.  Van  Degrift,  1  Mar- 
vel (Del.)  5,  29  Atl.  1047,  25  L.  R. 
A.  538. 

ez  Cohen  v.  New  York,  133  N.  Y. 
532. 

«s  Stanley  v.  Davenport,  54  Iowa, 
463,  37  Am.  Rep.  216. 


344 


PUBLIC   CORPORATIONS. 


[§340 


§  340.  Care  of  sidewalks. — A  municipal  corporation  is  lia- 
ble for  injuries  resulting  from  the  improper  condition  of  a  side- 
walk which  is  under  its  care,64  although  it  was  constructed  by 
a  private  corporation  or  individual.65  It  is  its  duty  to  keep  the 
sidewalks  in  a  reasonably  safe  condition  both  day  and  night  for 
the  uses  for  which  they  are  designed.66  This  duty  exists  in  the 
case  of  all  sidewalks  under  the  control  of  the  city,  although  what 
would  amount  to  negligence  in  one  locality  might  be  proper  care 
in  another.67  The  liability  is  the  same  in  respect  to  walks  built 
by  private  persons  or  situated  on  private  property,  if  they  are 
under  the  care  and  control  of  the  corporation.68  This  duty  cannot 
be  imposed  upon  the  lot  owner  in  such  a  manner  as  to  relieve 
the  corporation  from  its  responsibility.69  By  the  weight  of  au- 
thority the  imposition  by  ordinance  of  the  duty  to  care  for  the 
sidewalk  upon  the  owner  of  adjoining  property  does  not  render 
the  lot  owner  liable  to  individuals  or  relieve  the  municipality.70 


s*  Roe  v.  Kansas  City,  100  Mo. 
190.  As  to  liability  for  defective 
construction  or  the  adoption  of  a 
dangerous  plan,  see  infra,  §  348. 

esHutchings  v.  Sullivan,  90  Me. 
131,  37  Atl.  883 ;  Salisbury  v.  Ithaca, 
94  N.  Y.  27. 

««  City  of  Ord  v.  Nash,  50  Neb. 
335,  69  N.  W.  Rep.  964. 

87  South    Omaha    v.    Powell,    50 
Neb.  798,  70  N.  W.  391 ;  Waggener 
v.  Point  Pleasant,  42  W.  Va.  798; 
City  of  Flora  v.  Naney,  136  111.  45, 
26  N.  E.  645 ;  Fulliam  v.  Muscatine, 
70  Iowa,  436,  30  N.  W.  861. 

88  Graham    v.     Albert    Lea,    48 
Minn.   201,    50   N.   W.   1108;    Fox- 
worthy  v.   Hastings,  31  Neb.  825, 
48  N.  W.  901 ;  Mansfield  v.  Moore, 
124  111.  133 ;  Jewhurst  v.  Syracuse, 
108  N.  Y.  303. 

89  Betz  v.  Limingi,  46  La.  Ann. 
1113,  46  Am.  St.  344 ;  Rochester  v. 
Campbell,  123  N.   Y.  405;   Brook- 
ville  v.  Arthurs,  130  Pa.  St.  501; 
Keokuk  v.  Independent  District,  53 
Iowa,  352,  36  Am.  Rep.  226 ;  Noon- 
an   v.    Stillwater,   33   Minn.    198; 


Davenport  v.  Ruckman,  37  N.  Y. 
568.  The  mere  fact  that  the  char- 
ter made  it  the  duty  of  the  city  to 
repair  the  sidewalks  at  the  expense 
of  the  lot  owner  does  not  make  the 
owner  primarily  liable  for  injuries 
caused  by  negligence.  Fife  v.  Oh- 
kosh,  89  Wis.  540;  Sommers  v. 
Marshfield,  90  Wis.  59.  No  obli- 
gation to  repair  streets  or  side- 
walks rests  upon  the  owners  of 
abutting  property  at  common  law. 
Rochester  v.  Campbell,  123  N.  Y. 
405,  20  Am.  St.  760,  and  note. 

TO  Lord  v.  Mobile,  113  Ala.  360, 
21  So.  Rep.  366;  Flynn  v.  Canton 
Co.,  40  Md.  321,  17  Am.  Rep.  603; 
Zanesville  v.  Fannan,  53  Ohio  St. 
605,  53  Am.  St.  664  (liability  of 
city  and  railway  company)  ;  Sioux 
City  v.  Weare,  59  Iowa,  95 ;  West- 
field  v.  Mayo,  122  Mass.  100,  23  Am. 
Rep.  292;  Dillon,  Mun.  Corp.,  I, 
§§  1035,  1037.  The  crosswalks  are 
a  part  of  the  sidewalk.  Goodfel- 
low  v.  New  York,  100  N.  Y.  15.  See 
under  statute,  Hoyt  v.  Danbury,  69 
Conn.  841. 


[§340]  MUNICIPAL  DUTIES.  345 

The  owner  is,  of  course,  liable  for  his  own  acts  of  negligence,  as 
where  he  places  an  obstruction  in  the  street ; 71  but  the  mere  fact 
that  he  is  so  liable,  or  that  he  is  liable  over  to  the  corporation,72 
does  not  relieve  the  corporation  from  its  liability  to  persons  in- 
jured by  reason  of  the  street  being  in  an  unsafe  condition.73  Some 
courts  hold  that  a  statute  which  imposes  the  duty  of  keeping  the 
sidewalk  in  repair  upon  the  owners  of  adjoining  property  is  un- 
constitutional.74 Where  a  charter  made  it  the  duty  of  the  lot 
owner  to  construct  the  sidewalk  in  front  of  his  property  and  to 
keep  the  same  in  repair,  and  provided  that  if  he  failed  to  do  so 
the  city  might  do  the  work  and  charge  the  expense  against  the 
property,  and  that  when  an  injury  resulted  from  any  defect  in  a 
sidewalk  which  was  due  to  the  wrong,  default  or  negligence  of 
any  person  other  than  the  city  such  person  should  be  primarily 
liable  for  the  damages,  it  was  held  that  the  owner  was  not  liable 
for  a  mere  failure  to  keep  the  sidewalk  in  repair.75  Reasonable 
care  requires  that  the  corporation  shall  make  such  inspection  of 
the  sidewalks  from  time  to  time  as  is  reasonably  necessary 
to  guard  against  the  results  of  the  natural  decay  of  the  material 
of  which  they  are  constructed.76  The  duty  to  keep  the  sidewalks 
in  a  reasonably  safe  condition  is  at  common  law  owing  to  every 
person  who  uses  the  streets  for  the  ordinary  purposes  for  which 
they  are  designed.77 

71  Rochester  v.  Campbell,  123  N.  132 ;    Peoria   v.   Simpson,   110  111. 
Y.  405,  10  L.  R.  A.  393 ;  Calder  v.  294,  51  Am.  Rep.  683 ;  McConnell  v. 
Smalley,  66  Iowa,  219.  Osage  City,  80  Iowa,  293 ;  Stebbins 

72  City  of  Pawtucket  v.  Bray,  20  v.  Keene  Township,  55  Mich.  552. 
R.  I.  17,  37  Atl.  1.  "  Duffy    v.    Dubuque,    63    Iowa, 

73  Noonan  v.  Stillwater,  33  Minn.  171 ;  Maguire  v.  Spence,  91  N.  Y. 
198 ;  Kellogg  v.  Janesville,  34  Minn.  302.      When    the    liability    is    the 
132.     Joint  action   may   be   main-  creature  of  statute  it  extends  only 
tained  against  city  or  lot  owner,  to  travelers ;  but  the  word  is  given 
where  there  is  a  neglect  to  per-  a   liberal   construction,   and   it   is 
form   a   common  duty.     Peoria  v.  held  to  include  every  one  who  has 
Simpson,  110  111.  294,  51  Am.  Rep.  occasion  to  pass  over  the  highway 
683 ;   Stebbins  v.  Keene  Township,  for  any  purpose  of  business,  con- 
55  Mich.  552;  McConnell  v.  Osage  venience  or  pleasure.     It  must  be 
City,  80  Iowa,  293.  kept  "safe  and  convenient  for  all 

74  Noonan  v.  Stillwater,  supra.  persons    having    occasion    to    pass 

75  Selleck    v.    Tallman,    93    Wis.  over  it  while  engaged  in  any  of  the 
246 ;  Toutloff  v.  Green  Bay,  91  Wis.  pursuits  or  duties  of  life."     Blod- 
490.  gett  v.  Boston,  8  Allen,  237;  Reed 

76  Kellogg  v.  Janesville,  34  Minn.  v.  Madison,  83  Wis.  171,  17  L.  R. 


346  PUBLIC   CORPORATIONS.  [  §  341 

§341.  Obstructions  on  sidewalks. — A  corporation  must  ex- 
ercise reasonable  care  to  protect  the  public  from  being  injured 
by  obstructions  which  are  necessarily  and  properly  placed  on 
sidewalks  and  in  the  streets.  The  owner  of  land  abutting  upon 
a  public  street  is  permitted  to  encroach  on  the  primary  right  of 
the  public  to  a  limited  extent  and  for  a  temporary  purpose, 
owing  to  the  necessities  of  the  case.  Two  facts  must,  however, 
exist  to  render  the  encroachment  lawful;  the  obstruction  must 
be  reasonably  necessary  for  the  transaction  of  business  and  it 
must  not  unnecessarily  interfere  with  the  rights  of  the  public.78 
The  corporation  must  keep  the  streets  as  safe  as  practicable  under 
such  circumstances.79  The  corporation  is  not  an  insurer  against 
all  defects  in  its  sidewalks.80  Thus,  stepping-stones  for  persons 
alighting  from  carriages,81  or  slight  unevenness  or  depression  in 
the  sidewalks,82  are  not  defects ;  but  loose  planks 83  and  large 
holes84  are  such  defects  as  will  render  the  city  liable  for  dam- 
ages occasioned  thereby.  The  city  must  provide  reasonable 
guards  and  railings  to  prevent  people  from  being  injured  by 
cellar- ways  and  area-ways  entered  from  the  street.83  It  must  also 
protect  them  from  dangers  arising  from  structures  overhead, 
such  as  awnings,86  poles,87,  sign-boards,88  and  the  like. 

§342.  Ice  and  snow  on  highways. — The  liability  for  dam- 
ages resulting  from  the  presence  of  ice  and  snow  in  a  public 

A.  733.     The  question  is  discussed  ss  Maguire  v.   Spence,   91   N.  Y. 

In  Duffy  v.  Dubuque,  63  Iowa,  171,  303 ;  Day  v.  Mt.  Pleasant,  70  Iowa, 

and  in  Langlois  v.  Cohoes,  58  Hun  193.     But  see  Beardsley  v.  Hart- 

(N.  Y.),  226.  ford,   50   Conn.   529,   47   Am.   Rep. 

TS  Flynn    v.    Taylor,    127    N.    Y.  677 ;  Elliott,  Roads  and  Streets,  p. 

596 ;  Callanan  v.  Oilman,  107  N.  Y.  453. 

360.     See  District  of  Columbia  v.  so  Bohen    v.    Waseca,    32    Minn. 

Woodbury,  136  U.  S.  450.  176,  50  Am.   Rep.  564;   Bieling  v» 

79  Nolan  v.  King,  97  N.  Y.  565.  Brooklyn,  120  N.  Y.  98. 

so  Burns    v.    Bradford   City,    137  ST  Norristown   v.   Moyer,   67   Pa. 

Pa.  St.  361,  11  L.  R.  A.  726.  St.  355. 

si  Dubois  v.  Kingston,  102  N.  Y.  ss  Langan   v.   Atchison,  35  Kan. 

219.  318,  57  Am.  Rep.  165 ;  Kutz  v.  Troy, 

82  Witham   v.    Portland,   72   Me.  104  N.  Y.  344.    As  to  the  distinction 

539;    Childrey    v.    Huntington,    34  between  the  liability  in  case  of  ob- 

W.  Va.  459,  11  L.  R.  A.  313.  jects   attached   to   and   forming   a 

ss  Moon  v.  Ionia,  81  Mich.  535,  part  of  the  sidewalk  and  cases  of 

46  N.   W.   Rep.  25 ;   Armstrong  v.  overhanging   objects,   see   West   v. 
Ackley,  71  Iowa,  76.       ,  Lynn,  110  Mass.  514. 

s*  Tice  v.  Bay  City,  84  Mich.  461, 

47  N.  W.  1062. 


§342] 


MUNICIPAL   DUTIES. 


347 


street  is  governed  very  much  by  locality.  It  is  well  settled,  how- 
ever, that  in  the  absence  of  any  structural  defect  mere  slipperi- 
ness  is  not  such  a  defect  in  a  street  as  will  render  the  munici- 
pality liable.89  In  some  parts  of  the  country  it  is  held  that  the 
corporation  must  keep  its  sidewalks  free  from  ice  and  snow,  while 
in  other  localities,  where  the  climate  is  such  that  this  would  be 
imposing  an  undue  burden  upon  the  municipality,  it  is  held  that 
no  liability  exists  unless  the  ice  or  snow  is  allowed  to  accumu- 
late in  ridges  or  inequalities  so  as  to  form  an  obstruction  in  the 
street.90  The  duty  is  not  affected  by  the  fact  that  the  ice  is  in 
part  the  result  of  artificial  causes,  as  water  escaping  from  a  hose 
used  by  firemen.91  The  liability  has  been  held  to  exist  where  ice 
is  formed  on  a  sloping  sidewalk  92  or  where  it  is  caused  by  an  ac- 
cumulation of  water  due  to  a  structural  defect  in  the  walk.93 
The  owner  of  the  adjoining  property  may  be  required  to  remove 
snow  and  ice  from  the  sidewalk  under  a  penalty,94  but  is  not 
liable  to  individuals  for  injuries  received  by  reason  of  his  neg- 


89  Chicago    v.    McGiven,    78    111. 
347;  Harrington  v.  Buffalo,  121  N. 
Y.  147;  Bell  v.  York,  31  Neb.  842, 
48    N.    W.    878;    Broburg    v.    Des 
Moiues,   63   Iowa,    523,   19   N.   W. 
340,  50  Am.  Rep.  756 ;  Grossenbach 
v.  Milwaukee,  65  Wis.  31,  56  Am. 
Rep.  614;   Rolf  v.  Greenville,  102 
Mich.  544. 

90  Henkes     v.     Minneapolis,    42 
Minn.  530;  Stanke  v.  St.  Paul,  71 
Minn.  51,  73  N.  W.  629;  Cook  v. 
Milwaukee,  27  Wis.  191 ;  Kinney  v. 
Troy,  108  N.  Y.  567;  Hausmann  v. 
Madison,  85  Wis.  187,  21  L.  R.  A. 
263,  annotated;  Huston  v.  Council 
Bluffs,  101  Iowa,  33,  69  N.  W.  1130, 
36  L.  R.  A.  211;  Paulson  v.  Peli- 
can, 79  Wis.  445,  48  N.  W.  715,  and 
cases  cited  in  preceding  note.    An 
accumulation  of  snow  or  ice  on  a 
sidewalk,  allowed  to  remain  after 
actual  notice  of  the  danger,  will 
render  the  city  liable  for  damages 
caused  thereby.    Virginia  v.  Plum- 
mer,  65  111.  App.  419.     Piling  snow 


on  both  sides  of  a  railway  track  is 
negligence.  Ellis  v.  Lewiston,  89 
Me.  60.  But  see  Hutchinson  v. 
Ypsilanti,  103  Mich.  12,  61  N.  W. 
279.  Liable  for  injuries  caused  by 
snow  on  sidewalk.  Fife  v.  Osh- 
kosh,  89  Wis.  540. 

si  Henkes      v.      Minneapolis,    42 
Minn.  530. 

92  Pinkham     v.     Topsfleld,     104 
Mass.  78.    See  Nichols  v.  St.  Paul, 
44  Minn.  494   (sloping  street). 

93  Gillrie  v.  Lockport,  122  N.  Y. 
403. 

94  Carthage  v.  Frederick,  122  N. 
Y.  269,  19  Am.  St.  490,  10  L.  R.  A. 
178;  Paxson  v.  Sweet,  13  N.  J.  L. 
196.     But  see  Chicago  v.  O'Brien, 
111  111.  532,  53  Am.  Rep.  640.     In 
City  of  Port  Huron  v.  Jenkinson, 
77  Mich.  414,  18  Am.  St.  Rep.  409, 
an    ordinance    which    made    it    a 
crime  for  the  owner  of  a  lot  to 
neglect  to  build  a  sidewalk  in  front 
of  the  lot,  without  reference  to  his 
ability  to  do  so,  was  held  invalid. 


348  PUBLIC   CORPORATIONS.  [  §  343 

lect  to  comply  with  the  requirements  of  such  an  ordinance.93 
The  fact  that  a  country  road  was  impassable  for  a  period  of  three 
months  because  of  snow  will  not  render  the  town  liable  for  in- 
juries received  by  a  person  trying  to  pass  over  the  road.96  There 
is  no  liability  for  a  defect  in  a  road  made  by  travelers  around  a 
snowdrift.97  A  person  who  attempts  to  pass  over  a  sidewalk 
which  is  dangerous  by  reason  of  ice,  when  he  might  avoid  the 
same  by  passing  around  it,  may  be  found  to  be  guilty  of  contribu- 
tory negligence.98 

§343.  Care  of  bridges.— Bridges  are  ordinarily  a  part  of 
the  highway,1  and  it  is  for  the  corporation  to  decide  whether  or 
not  they  shall  be  built.2  Where,  however,  a  public  corporation 
is  required  by  a  mandatory  statute  to  construct  a  bridge,  the 
duty  may  be  compelled  by  mandamus.3  The  corporation  must 
exercise  reasonable  care  during  the  construction  of  the  bridge 
for  the  safety  of  travelers  by  placing  proper  guards  and  railings 
in  the  streets  and  around  the  approaches.4  The  location  of  a 
bridge  is  a  governmental  act,  but  a  corporation  has  been  held 
liable  for  locating  a  bridge  so  as  to  injure  adjoining  property,  on 
the  theory  that  the  government  has  no  right  to  undertake  the 
work  in  a  negligent  manner.5  During  the  process  of  construc- 

95Kochester  v.  Campbell,  123  N.  scribed  by  statute  or  spring  from 
Y.  405 ;  Heeney  v.  Sprague,  11  R.  I.  their  powers.  There  is  no  common- 
456,  23  Am.  Rep.  502,  and  the  elab-  law  responsibility  on  municipal 
orate  decision  in  Flynn  v.  Canton  corporations  in  respect  to  the  re- 
Co.,  40  Md.  312,  17  Am.  Rep.  603.  pair  of  bridges  within  their  limits ; 
As  to  civil  liability  created  by  vio-  but  where  bridges  are  part  of  the 
lation  of  an  ordinance,  see  Hart-  streets  and  built  by  the  municipal 
ford  v.  Talcott,  48  Conn.  525.  authorities  under  powers  given  to 

as  Burr  v.  Plymouth,  48  Conn,  them  by  the  legislature,  they  are 

460.  liable  for  defects  therein  on  the 

97  Bogie  v.  Waupun,  75  Wis.  1.  same  principles  and  to  the  same  ex- 

98  Erie  v.  Magill,  101  Pa.  St.  616,  tent  as  for  defective  streets."   Dil- 
47  Am.  Rep.  739,  annotated ;  Quin-  Ion,  Mun.  Corp.,  II,  §  728. 

cy  v.  Barker,  81  111.  300 ;  Belton  v.  2  Quinton    v.    Burton,    61    Iowa, 

Boston,  54  N.  Y.  245;   Shaefler  v.  471;   Orth  v.  Milwaukee,  59  Wis. 

Sandusky,  33  Ohio  St.  246.  336. 

i  Goshen  v.  Myers,  119  Ind.  196.  »  State  v.  Northumberland,  46  N. 

"In  this  country  the  power  of  mu-  H.  156. 

nicipal  corporations  to  build  them  *  Mullen  v.  Rutland,  55  Vt.  77 ; 

and  their  authority  over  them  are  The  Modock,  26  Fed.  718. 

wholly  statutory,  and  their  duties  s  Hartford   County  v.   Wise,   75 

in  respect  to  them  are  either  pre-  Md.  38. 


§344] 


MUNICIPAL  DUTIES. 


349 


tion  the  corporation  is  under  the  same  obligation  to  exercise  rea- 
sonable care  as  an  individual  under  the  same  circumstances.0 
All  public  works  must  be  so  constructed  as  to  withstand  the 
ordinary  storms  of  the  locality,7  and  as  to  afford  a  reasonably 
safe  passage-way  for  the  public,  using  it  in  the  ordinary  manner.8 
But  provision  need  not  be  made  for  supporting  extraordinary 
weights.9  It  must  be  so  protected  by  proper  guards  and  railings 
as  to  avoid  injury  to  persons  using  the  bridge  in  the  exercise  of 
ordinary  care ; 10  that  is,  the  corporation  is  under  obligation  to 
construct  and  maintain  a  reasonably  safe  structure.11 

§  344.  Notice. — Before  a  municipal  corporation  can  be  held 
liable  for  an  injury  resulting  from  a  defective  street  which  was 
not  caused  by  its  act  or  with  its  permission,12  it  must  appear 
that  it  had  actual  or  constructive  13  notice  of  such  defect  in  time 
to  have  repaired  it  or  protected  passers-by  from  injury.14  But 


e  Perry  v.  Worcester,  6  Gray, 
544,  66  Am.  Dec.  431;  Doherty  v. 
Braintree,  148  Mass.  495. 

T  Allen  v.  Chippewa  Falls,  52 
Wis.  430,  38  Am.  Rep.  748 ;  Chica- 
go, etc.  Co.  v.  Sawyer,  69  111.  285, 
18  Am.  Rep.  618,  note. 

sWabash  v.  Pearson,  120  Ind. 
426;  Wilson  v.  Granby,  47  Conn. 
59. 

»Monongahela  Bridge  Co.  v. 
Pittsburgh,  114  Pa.  St.  478 ;  Moore 
v.  Kenockee  Tp.,  57  Mich.  332. 

ioCorbalis  v.  Newberry  Tp.,  132 
Pa.  St.  9.  Where  the  liability  is  to 
travelers,  imposed  by  statute,  the 
side-rails  need  not  be  sufficient  to 
sustain  the  weight  of  one  who 
leans  upon  them;  they  are  sup- 
posed to  be  for  the  purpose  of 
warning  only.  See  Stickney  v. 
Salem,  3  Allen  374.  Contra,  Lang- 
lois  v.  Cohoes,  58  Hun  226. 

11  Jordan    v.    Hannibal,    87    Mo. 
673;  Ferguson  v.  Davis  County,  57 
Iowa,  601. 

12  If  the  defective  condition  of 
the  street  is  due  to  the  negligence 


of  the  corporation,  notice  is  not  es- 
sential. A  city  must  take  notice  of 
the  tendency  of  wood  to  decay. 
Furnell  v.  St.  Paul,  20  Minn.  117 
(Gil.  101)  ;  Springfield  v.  Le  Claire, 
49  111.  476;  Barton  v.  Syracuse,  36 
N.  Y.  54. 

is  The  fact  that  a  defect  in  a 
sidewalk  on  a  prominent  thorough- 
fare has  existed  for  several  months 
is  constructive  notice  of  its  condi- 
tion. Moore  v.  Minneapolis,  19 
Minn.  300  (Gil.  259).  Evidence 
that  the  sidewalk  in  or  near  the 
place  of  the  accident  was  in  gener- 
ally bad  condition  is  competent  on 
the  issue  of  notice.  Gude  v.  Man- 
kato,  30  Minn.  256;  Sterling  v. 
Merrill,  124  111.  522;  Cook  v.  Ana- 
mosa,  66  Iowa,  427. 

14  Moore  v.  Minneapolis,  19  Minn. 
300  (Gil.  258)  ;  Burleson  v.  Read- 
ing, 117  Mich.  115,  68  N.  W.  294; 
L'Herault  v.  Minneapolis,  69  Minn. 
261,  72  N.  W.  73 ;  Jones  v.  Clinton, 
100  Iowa,  333,  69  N.  W.  418;  Siiy- 
der  v.  Albion,  113  Mich.  275,  71  N. 
W.  475. 


350  PUBLIC   CORPORATIONS.  [§  344 

the  corporation  is  chargeable  with  such  knowledge  of  a  condition 
in  its  streets  as  it  is  its  duty  to  possess,15  and  it  is  sufficient  evi- 
dence of  notice  to  establish  the  existence  of  facts  from  which 
notice  will  be  inferred  or  circumstances  from  which  the  defect 
might  have  been  known.16 

is  Carstesen   v.   Town   of    Strat-     Gillvie  v.  Lockport,  122  N.  Y.  403 ; 
ford,  67  Conn.  428.  Lorence   v.    Ellensburg,   13   Wash. 

IB  Lincoln  v.  Smith,  28  Neb.  762 ;     341,  52  Am.  St  42. 


CHAPTER  XXIII. 


THE  CONSTRUCTION  AND  CARE  OF  PUBLIC  WORKS. 


345.  Care  of  public  property. 

346.  Surface  waters. 

347.  Drainage  and  sewers. 

348.  The  plan  of  a  public  work. 


§  349.  Direct  injury  to  property. 

350.  The  construction  and  care  of 

sewers. 

351.  Consequential  damages. 


§  345.  Care  of  public  property. — The  rule  of  non-liability  of 
a  municipal  corporation  for  negligence  in  the  care  of  public 
buildings  is  thus  stated  by  Mr.  Justice  Morton : 1  "A  city  or 
town  is  not  liable  to  a  private  citizen  for  any  defect  or  want  of 
repair  in  a  city  or  town  hall  or  other  public  building  erected  and 
used  solely  for  municipal  purposes,  or  for  negligence  of  its  agents 
in  the  management  of  such  buildings.  This  is  because  it  is  not 
liable  to  private  actions  for  omission  or  neglect  to  perform  a 
corporate  duty  imposed  by  general  laws  upon  all  cities  and  towns 
alike,  from  the  performance  of  which  it  derives  no  compensation. 
But  when  a  city  or  town  does  not  devote  such  building  exclu- 
sively to  municipal  uses,  but  lets  it  or  a  part  of  it  for  its  own 
advantage  and  emolument,  by  receiving  rents,  or  otherwise,  it  is 
liable  while  it  is  so  let  in  the  same  manner  as  a  private  owner 
would  be. ' '  This  rule  prevails  in  the  New  England  states  gener- 
ally,2 and  elsewhere  it  exempts  counties  from  liability  for  injuries 
caused  by  neglect  to  keep  the  public  buildings  in  repair.3  In  re- 
spect to  cities,  and  other  municipal  corporations  proper,  as  to 
liability  in  the  absence  of  statute,  the  authorities  are  not  uniform. 
Thus,  a  city  has  been  held  liable  for  injuries  caused  by  the  neg- 


1  Worden   v.   New   Bedford,   131 
Mass.  23. 

2  See  Eastman  v.  Meredith.  36  N. 
H.  284 ;  Wixon  v.  Newport,  13  R.  I. 
454;  Hill  v.  Boston,  122  Mass.  344. 
Bigelow  v.  Randolph,  14  Gray,  541 ; 
Oliver  v.  Worcester,  102  Mass.  489, 
3  Am.  Rep.  485;  Kelley  v.  Boston, 
ISO  Mass.  233,  62  N.  E.  259. 


sDosdall  v.  Olmsted  County,  30 
Minn.  96,  44  Am.  Rep.  185;  Kin- 
caid  v.  Hardin  County,  53  Iowa, 
430,  36  Am.  Rep.  236;  Downing  v. 
Mason  County,  87  Ky.  208;  Shep- 
pard  v.  Pulaski  County,  13  Ky. 
Law,  672,  18  S.  W.  15. 


351 


352 


PUBLIC   CORPORATIONS. 


[§346 


ligent  condition  of  a  courthouse,4  defective  plumbing  in  a 
school  building,5  an  open  cellar  of  a  police  station,6  a  well  main- 
tained for  public  use,7  a  fire  engine,8  a  public  dumping  yard,0 
and  of  trees  belonging  to  the  city.10  But  there  is  no  liability  for 
damages  caused  by  the  bursting  of  fire-hose  caused  by  the  negli- 
gence of  the  firemen,11  the  unsafe  condition  of  a  hydrant  which 
resulted  in  injury  to  property  of  a  citizen,12  or  the  unsafe  han- 
dling of  a  dumping  truck  while  engaged  in  collecting  the  refuse 
of  the  city.13 

§  346.  Surface  waters. — By  the  common  law  any  person  may 
erect  barriers  to  prevent  surface  water  from  coming  upon  his 
land,  although  it  is  thereby  made  to  flow  upon  the  land  of  another 
to  his  damage.  This  doctrine  has  been  adopted  in  a  number  of 
states,14  while  others  adhere  to  what  is  known  as  the  civil-law 
rule,  which  holds  the  lower  estate  chargeable  with  a  servitude  for 


*  Galvin  v.  New  York,  112  N.  Y. 
223,  19  N.  E.  675. 

s  Briegel  v.  Philadelphia,  135  Pa. 
St.  451,  30  Am.  &  Eng.  C.  C.  501, 
note;  Wixon  v.  Newport,  13  R.  I. 
454. 

e  Carrington  v.  St.  Louis,  89  Mo. 
208. 

t  Danaher  v.  Brooklyn,  119  N.  Y. 
241.  But  the  city  is  not  an  insurer 
of  the  quality  of  the  water,  and  in 
order  to  authorize  a  recovery  on 
that  ground  it  is  necessary  to  show 
wilful  misconduct  or  culpable  neg- 
lect. 

s  Lafayette  v.  Allen,  81  Ind.  166. 
In  this  case  the  city  was  held  liable 
to  an  engineer  who  was  put  at 
work  on  a  defective  engine.  Con- 
tra, see  Wild  v.  Paterson,  47  N.  J. 
L.  406.  See  generally  as  to  liability 
to  employes,  Rhobidas  v.  Concord, 
70  N.  H.  90,  47  Atl.  82. 

» Fort  Worth  v.  Crawford,  74 
Tex.  404. 

10  Jones  v.  New  Haven,  34  Conn. 
1. 

11  Fisher  v.  Boston,  104  Mass.  87, 
6  Am.  Rep.  196. 


12  Welsh  v.  Rutland,  56  Vt.  228, 
48  Am.  Rep.  762.  Contra,  Jenny  v. 
Brooklyn,  120  N.  Y.  164. 

isCondict  v.  Jersey  City,  46  N. 
J.  L.  157.  See  Haley  v.  Boston,  191 
Mass.  291. 

i*  Gannon  v.  Hargadon,  10  Allen, 
106,  Bigelow,  C.  J.  See,  also, 
Chadeayne  v.  Robinson,  55  Conn. 
345 ;  Murphy  v.  Kelley,  68  Me.  521 ; 
Edwards  v.  Charlotte  R.  R.  Co.,  39 
S.  C.  472,  22  L.  R.  A.  246 ;  Hanlin 
v.  Chicago,  etc.  Co.,  61  Wis.  515; 
Jones  v.  Hannoran,  55  Mo.  462; 
Mo.  Pac.  R.  Co.  v.  Keys,  55  Kan. 
205,  49  Am.  St.  249,  and  note.  The 
common  law  regards  surface  water 
as  the  common  enemy  which  each 
proprietor  may  turn  from  his  own 
land.  The  description  was  first 
used  in  Rex  v.  Com'rs  of  Sewers,  8 
Barn.  &  Cress.  355.  See  an  article 
in  23  Am.  Law  Rev.  372.  See  for 
common-law  rule,  Mayor  v.  Sikes, 
94  Ga.  30,  47  Am.  St.  132.  The 
cases  governing  surface  water  are 
collected  in  an  exhaustive  note  to 
Gray  v.  McWilliams,  98  Cal.  157,  in 
21  L.  R.  A.  593. 


§  346]  CONSTRUCTION  AND  CARE  OF  PUBLIC  WORKS.  353 

the  benefit  of  the  upper  estate,  to  permit  the  surface  water  to 
flow  over  it  as  it  has  been  accustomed  to  do.15  Where  the  com- 
mon law  rule  prevails,  cities  and  towns,  as  the  owners  of  lands 
for  highways  and  other  public  purposes,  have  the  same  right  to 
obstruct  and  repel  the  flow  of  surface  water  as  other  proprie- 
tors.16 A  corporation  has  less  power  over  natural  water-courses 
than  over  ordinary  surface  waters.  To  be  a  water-course  ' '  there 
must  be  a  stream  usually  flowing  in  a  particular  direction,  though 
it  need  not  flow  continually.  It  may  sometimes  be  dry.  It  must 
flow  in  a  definite  channel,  having  a  bed,  sides  and  banks,  and 
usually  discharge  itself  in  some  other  stream  or  body  of  water. "  1T 
A  natural  water-course  cannot  be  obstructed  and  the  waters 
turned  back  upon  the  land  of  another  proprietor.18  Every  pro- 
prietor of  land  on  a  water-course  is  entitled  to  the  employment 
and  use  of  the  stream  substantially  in  its  natural  flow,  subject 
only  to  such  interruptions  as  are  necessary  and  unavoidable  in 
its  reasonable  and  proper  use  by  other  proprietors.19  A  corpora- 
tion must  so  construct  its  public  works  as  not  to  interfere  with 
or  obstruct  the  waters  of  a  natural  stream,  and  in  the  absence  of 
a  statute  expressly  authorizing  such  obstruction  it  is  liable  for 
real  and  substantial  damages  occasioned  to  individuals  by  its 
torts.20  It  is  also  established  by  the  weight  of  authority  that  a 
municipal  corporation  is  liable  for  damages  if  it  collects  surface 
water  and  causes  it  to  be  discharged  with  increased  volume  and 
force  upon  the  property  of  an  individual  where  it  would  not  have 
gone  by  natural  causes.21 


15  Domat,  Civil  Law  (Gush,  ed.),  20  Perry    v.    Worcester,    6   Gray, 

§1583;  Lambert  v.  Alcorn,  144  111.  544,   66  Am.   Dec.   431,  and  note; 

313,  21  L.  R.  A.  611;  Gray  v.  Me-  Gilman  v.  Laconia,  55  N.  H.  130, 

Williams,  98  Cal.  157,  21  L.  R.  A.  20  Am.  Rep.  175. 

593 ;  Farris  v.  Dudley,  78  Ala.  124.  21  Kauffman  v.  Griesemer,  26  Pa. 

i«Hoyt  v. -Hudson,  27  Wis.  656,  St.  407,  67  Am.  Dec.  437;  Beach  v. 

9  Am.  Rep.  473 ;  Inman  v.  Tripp,  Gaylord,  43  Minn.  466 ;  Conner  v. 

11  R.  I.  520;  Wakefield  v.  Newell,  Woodflll,   126  Ind.   85;   Rathke  v. 

12  R.  I.  75 ;  Murray  v.  Allen,  20  R.  Gardner,  134  Mass.  14 ;  Rychlicki 
I.  263,  38  Atl.  497.  v.   St.  Louis,  98  Mo.  497;  Kobs  v. 

17  Dixon,  C.  J.,  in  Hoyt  v.  Hud-  Minneapolis,  22  Minn.  159 ;  Pyre  v. 

son,  27  Wis.  656,  661,  9  Am.  Rep.  Mankato,  36  Minn.  373,  1  Am.  Sv. 

473.  671,  note.  In  Davis  v.  Crawfords- 

is  Emery  v.  Lowell,  104  Mass.  13.  ville,  119  Ind.  1,  12  Am.  St.  361,  it 

IB  See  Warren  v.  Westbrook  Mfg.  was  held  that  a  city  is  liable  in 

Co.,  86  Me.  32,  26  L.  R.  A.  284.  damages  for  collecting  water  in  ar- 

23 


354  PUBLIC   CORPORATIONS.  [§347 

§  347.  Drainage  and  sewers. — A  municipal  corporation  is  not 
liable  for  damages  resulting  from  a  failure  to  exercise  its  discre- 
tionary or  governmental  power  to  improve  its  streets  by  con- 
structing sewers  or  drains  for  the  purpose  of  carrying  off  surface 
water  and  sewage.22  In  determining  the  time  when  such  public 
improvements  shall  be  made,  and  the  claims  of  various  localities, 
it  acts  in  a  governmental  capacity,  and  is  not  liable  to  any  one 
for  its  action  or  non-action.23  The  authorities  are  not  entirely 
in  accord,  but  the  prevailing  rule  seems  to  be  that  a  city  is  not 
liable  for  damages  occasioned  by  changing  the  flow  of  surface 
water  when  it  results  from  a  proper  exercise  of  a  legal  power  to 
grade  the  streets,  or  in  constructing  other  public  improve- 
ments.24 

§  348.  The  plan  of  a  public  work. — It  has  often  been  said 
that  a  city  is  not  liable  for  injuries  caused  by  a  defect  or  want  of 
efficiency  in  the  plan  adopted  for  a  sewer  or  other  public  im- 
provement ; 25  but  this  general  statement  is  not  concurred  in  by 
all  courts,  for  some  hold  that  the  corporation  may  be  held  re- 
sponsible if  a  lack  of  due  care  be  shown  in  deciding  on  the  plan. 
In  deciding  whether  a  system  shall  be  adopted  and  in  what  part 
or  parts  of  a  city  it  shall  be  constructed,  the  corporation  acts 

tiflcial  channels  and  casting  it  in  2*  Burns  v.  Cohoes,  67  N.  Y.  204 ; 

a  body  upon  the  property  of  others,  Templeton  v.  Voshloe,  72  Ind.  134, 

but  is  not  liable  for  consequential  37  Am.  Rep.  150;  Davis  v.  Craw- 

dainages  caused  by  grading  and  im-  fordsville,  119  Ind.  1 ;  O'Brien  v.  St. 

proving  its  streets,  unless  the  work  Paul,  25  Minn.  331.     See  1  Dillon, 

was  done  negligently.  Mun.  Corp.    (4th  ed.),  §1042,  and 

22  Cochrane  v.  Maiden,  152  Mass,  cases  cited. 

365 ;  Noble  v.   St.  Albans,  56  Vt.        25  The  leading  case  is  Mills  v. 

522 ;  Springfield  v.  Spence,  39  Ohio  Brooklyn,  32  N.  Y.  489.     The  au- 

St.  665;  Weis  v.  Madison,  75  Ind.  thorities  are  collected  in  an  exten- 

241.  sive  note  to  Perry  v.  Worcester,  6 

23  Mills   v.    Brooklyn,    32   N.    Y.  Gray,  544,   66  Am.  Dec.  431,  435. 
489 ;  Cummins  v.  Seymour,  79  Ind.  The  author  of  the  note  says  that 
491,  41  Am.  Rep.  618;  Henderson  the  weight  of  authority   (18S6)  is 
v.  Minneapolis,  32  Minn.  319.    It  is  in  favor  of  the  view  that  the  city 
not  the  duty  of  a  city  to  construct  acts  judicially  in  adopting  the  plan 
sewers  in  order  to  relieve  the  prop-  of  drainage.     It  will  be  observed 
erty   of   individuals   from    surface  that  in  Mills  v.  Brooklyn,  32  N.  Y. 
water.    Jordan  v.  Benwood,  42  W.  495,  the  court  said  that  the  plain- 
Va.  312,  26  S.  E.  266;  Montgomery  tiff's  condition  was  no  worse  than 
v.  Gilmer,  33  Ala.  116,  70  Am.  Dec.  it  would  have  been  had  no  sewer 
562.  been  built. 


§348] 


CONSTRUCTION  AND  CARE  OP  PUBLIC  WORKS. 


355 


free  from  liability  to  individuals  for  consequential  damages. 
But  according  to  these  authorities,  it  must  exercise  reasonable 
care  and  skill  in  adopting  the  plan,  as  well  as  in  the  work  of  me- 
chanical construction.20  This  requires  that  it  shall  use  care  in 
selecting  advisers  and  engineers27  and  in  adopting  a  system 
reasonably  adequate  for  the  work  which,  in  the  light  of  the 
history  of  the  locality,  will  be  required  of  it.28  That  is,  there 
may  be  such  a  lack  of  care  and  skill  in  devising  the  plan  as  to 
amount  to  actionable  negligence.  But  if  proper  care  is  used  in 
adopting  the  plan  there  is  no  liability  for  damages  resulting  to 
individuals  from  the  mere  fact  that  the  plan  proves  defective  or 
insufficient.  If,  however,  after  the  system  is  constructed,  it 
proves  injurious  to  property  and  with  knowledge  of  that 
fact  the  corporation  continues  to  maintain  it,  and  individuals 


ze  North  Vernon  v.  Voegler,  103 
Ind.  314;  Evansville  v.  Decker,  84 
Ind.  325,  43  Am.  Rep.  86;  Indian- 
apolis v.  Buffer,  30  Ind.  235;  Sey- 
mour v.  Cummins,  119  Ind.  148,  5 
L.  R.  A.  126;  Van  Pelt  v.  Daven- 
port, 42  Iowa,  308.  There  is  no 
further  responsibility  for  defects 
causing  merely  consequential  in- 
juries when  reasonable  care  has 
been  exercised  to  employ  a  com- 
petent engineer  to  devise  the  plan. 
Diamond  Match  Co.  v.  New  Haven, 
55  Conn.  510.  The  rule  that  a  city 
is  not  liable  for  injuries  occasioned 
by  the  plan  adopted  should  not  be 
so  extended  as  to  relieve  "the  city 
from  liability  when  the  plan  de- 
vised and  put  in  operation  leaves 
the  city's  streets  in  a  dangerous 
condition  for  public  use."  Tiede- 
man,  Pub.  Corp.,  §  350,  quoted  with 
approval  in  Chicago  v.  Seben,  165 
111.  371.  See,  especially,  Gould  v. 
Topeka,  32  Kan.  485.  In  Omaha  v. 
Richards,  49  Neb.  244,  the  court 
said:  "It  was  the  duty  of  the  city 
to  have  constructed  the  sewer  and 
street  in  question  in  such  a  manner 


as  to  provide  a  proper  and  adequate 
outlet  for  the  water  that  might 
have  been  reasonably  expected  to 
come  down  this  ravine.  In  failing 
to  do  so,  the  city  authorities  were 
guilty  of  negligence."  The  city 
was  therefore  held  liable  for  inju- 
ries caused  to  a  person  using  the 
street,  by  a  pond  of  water  therein. 
But  these  decisions  rest  upon  the 
duty  to  repair  streets. 

27  Rochester  White  Lead  Co.  v. 
Rochester,  3  N.  Y.  463;  Diamond 
Match  Co.  v.  New  Haven,  55  Conn. 
510. 

zs  Beatrice  v.  Leary,  45  Neb.  149, 
50  Am.  St.  547;  Allen  v.  Chippewa 
Falls,  52  Wis.  430,  38  Am.  Rep.  748. 
In  Spangler  v.  San  Francisco,  84 
Cal.  12,  the  court  said:  "It  is  the 
duty  of  the  city,  when  it  does  pro- 
vide waterways,  to  provide  such 
as  are  sufficient  to  carry  off 
the  water  that  may  reasonably 
be  expected  to  accumulate."  Citing 
Dainour  v.  Lyon  City,  44  Iowa, 
276;  Powers  v.  Council  Bluffs,  50 
Iowa,  197;  Schroeder  v.  Baraboo, 
93  Wis.  95,  67  N.  W.  27. 


356 


PUBLIC   CORPORATIONS. 


[§349 


are  thereby  damaged,  it  is  liable,29  as  a  city  has  no  immunity  from 
legal  responsibility  for  maintaining  an  unauthorized  nuisance. 

§  349.  Direct  injury  to  property. — It  has  already  been  stated 
that  a  municipality  has  no  right,  in  the  exercise  of  its  power  over 
its  streets,  to  collect  water  and  sewage  and  deposit  them  in  a  de- 
fined channel  or  accumulation  upon  the  private  property  of  an 
individual.30  Such  an  act  is  a  direct  invasion  of  a  property  right, 
and  the  corporation  is  liable  for  the  resulting  damages,  regardless 
of  the  fact  that  the  sewer  was  constructed  in  accordance  with  the 
plan  adopted.31  "To  determine  when  and  upon  what  plan  a 
public  improvement  shall  be  made  is,"  says  Chief  Justice  Gil- 


29  Netzer  v.  Crookston,  59  Minn. 
244;  Tate  v.  St.  Paul,  56  Minn. 
527;  Seifert  v.  Brooklyn,  101  N.  Y. 
136;  Child  v.  Boston,  4  Allen,  41. 
In  Netzer  v.  Crookston,  supra,  the 
court  said,  with  reference  to  Tate 
v.  St.  Paul :  "The  principle  on 
which  that  case  was  really  decided 
is  that,  even  though  the  defect  in 
the  sewer  is  of  legislative  origin, 
yet  where  it  is  clearly  demon- 
strated by  experience,  after  suffi- 
cient trial,  that  the  sewer  is,  under 
ordinary  conditions,  insufficient  for 
its  purpose,  the  city  is  liable  for 
maintaining  it;  that  while  it  is 
not  liable  for  the  original  error, 
which  was  legislative,  it  is  liable 
for  persisting  in  that  error  after 
sufficient  trial  and  experience, 
which  is  ministerial."  A  city  can- 
not justify  itself  in  maintaining  a 
private  nuisance.  Miles  v.  Wor- 
cester, 154  Mass.  511 ;  Harper  v. 
Milwaukee,  30  Wis.  365 ;  Noonan  v. 
Albany,  79  N.  Y.  470. 

so  Seifert  v.  Brooklyn,  101  N.  Y. 
136;  Lynch  v.  New  York,  76  N.  Y. 
60;  Hitchins  v.  Frostburg,  68  Md. 
100;  Jacksonville  v.  Lambert,  62 
111.  519;  Gilluly  v.  Madison,  63 
Wis.  518.  A  city  may  be  enjoined 
from  discharging  water  on  private 
lands.  Field  v.  West  Orange,  36  N. 


J.  Eq.  118.  This  rule  does  not 
change  the  liability  of  the  corpora- 
tion for  merely  changing  or  increas- 
ing the  flow  of  surface  water,  as 
an  adjoining  owner  might.  Heth 
v.  Fond  du  Lac,  63  Wis.  228.  There 
is"  no  liability  for  damages  caused 
by  water  percolating  from  gullies 
into  adjacent  cellars.  Kennison  v. 
Beverly,  146  Mass.  467. 

si  Tate  v.  St.  Paul,  56  Minn.  527 ; 
Seifert  v.  Brooklyn,  101  N.  Y.  136 ; 
Huffmire  v.  Brooklyn,  162  N.  Y. 
584;  Ashley  v.  Port  Huron,  35 
Mich.  296;  Weis  v.  Madison,  75 
Ind.  241 ;  Gillison  v.  Charleston,  16 
W.  Va.  282,  37  Am.  Rep.  763 ;  Bos- 
ton Belting  Co.  v.  Boston,  149  Mass. 
44;  Burford  v.  Grand  Rapids,  53 
Mich.  98 ;  Evansville  v.  Decker,  84 
Ind.  325,  43  Am.  Rep.  86 ;  Rychlicki 
v.  St.  Louis,  98  Mo.  497,  4  L.  R.  A. 
594,  note;  Chapman  v.  Rochester, 
110  N.  Y.  273,  1  L.  R.  A.  298,  with 
note  on  liability  for  the  pollution 
of  waters.  In  Tate  v.  St.  Paul,  56 
Minn.  527  at  530,  the  court  said: 
"Judge  Dillon,  in  his  work  on  Mu- 
nicipal Corporations  (4th  ed.), 
§§  1047  to  1051,  approves  the  rule 
laid  down  in  more  recent  decisions 
by  some  of  our  ablest  courts,  that 
if  a  sewer,  whatever  its  plan,  is 
so  constructed  as  to  cause  a  posi- 


§349] 


CONSTRUCTION  AND  CARE  OF  PUBLIC  WORKS. 


357 


fillan,32  "  unless  the  charter  otherwise  provides,  left  to  the  judg- 
ment of  the  proper  municipal  authorities,  and  is  in  its  nature 
legislative ;  and  although  the  power  is  vested  in  the  municipality 
for  the  benefit  and  relief  of  property,  error  of  judgment  as  to 
when  or  upon  what  plan  the  improvement  shall  be  made,  result- 
ing only  in  incidental  injury  to  the  property,  will  not  be  ground 
of  action;  as  if,  in  grading  streets  to  the  authorized  grades,  the 
plan  of  the  grading  is  inadequate  to  drain  a  lot  of  its  surface 
water,  or  even  if  it  makes  it  more  difficult  and  expensive  for  the 
owner  to  drain  it,  or  makes  access  to  the  lot  more  difficult,  that  is 
a  result  incidental  to  the  improvement.  But  for  a  direct  inva- 
sion of  one's  right  of  property,  even  though  contemplated  by  or 
necessarily  resulting  from  the  plan  adopted,  an  action  will  lie; 
otherwise  it  would  be  taking  private  property  for  public  use  with- 
out compensation.  Thus,  if,  in  cutting  a  street  down  to  a  grade 
the  soil  of  an  abutting  lot  is  precipitated  into  the  cut,  or  if,  in 
filling  up  the  grade,  the  slope  of  the  embankment  is  made  to  rest 
on  private  property,  that  is  a  direct  invasion  of  property  rights 
which  cannot  be  justified,  even  though  the  plan  adopted  contem- 
plates or  will  necessarily  produce  the  result. ' ' 


tive  and  direct  invasion  of  private 
property,  as  by  collecting  and 
throwing  upon  it  to  its  damage 
water  or  sewage  which  would  not 
otherwise  have  flowed  or  found  its 
way  there,  the  corporation  is  liable. 
*  *  *  It  is  impossible  to  answer 
the  reasoning  of  these  cases,  espe- 
cially where  the  injury  complained 
of  constitutes  a  taking.  That  mak- 
ing one's  premises  a  place  of  de- 
posit for  the  surplus  waters  in  the 
sewers  in  times  of  high  water,  or 
creating  a  nuisance  upon  them  so 
as  to  deprive  the  owner  of  the 
beneficial  use  of  his  property,  is  an 
appropriation  requiring  compensa- 
tion to  be  made,  see  Weaver  v. 
Mississippi  &  R.  E.  Boom  Co.,  28 
Minn.  534."  "There  is  a  distinction 
between  the  rule  as  to  the  liability 
of  a  qwast-corporation  on  account 


of  the  negligent  action  and  non- 
feasance  or  trespasses  of  its  officers 
in  the  nature  of  torts,  and  damages 
which  are  occasioned  to  an  indi- 
vidual or  his  property  by  affirma- 
tive action  by  officers  in  supposed 
execution  of  a  corporate  power  for 
a  public  purpose.  In  such  cases, 
where  the  individual  sustains  a 
special  injury,  it  may  be  said  that 
his  property  has  been  taken  or 
damaged  for  the  public  use,  and 
compensation  should  have  been 
made  in  the  first  instance,  or  the 
work  which  caused  the  injury 
should  be  abated  as  a  nuisance." 
1  Andrews'  American  Law,  §  383. 
See,  however,  Johnson  v.  Somer- 
ville,  195  Mass.  370. 

82  Tate  v.  St.  Paul,  56  Minn.  527, 
at  529. 


358 


PUBLIC   CORPORATIONS. 


[§350 


§  350.  The  construction  and  care  of  sewers. — When  the  cor- 
poration ceases  to  act  in  a  quasi- judicial,  or,  more  properly,  legis- 
lative capacity,  in  deciding  on  the  plan  of  an  improvement  in  the 
nature  of  sewers,  and  begins  to  act  ministerially  in  actually  con- 
structing it,  and  afterward  in  caring  for  it,  it  is  liable  for  dam- 
ages caused  by  negligence,  in  the  course  of  the  work.  The  liability 
for  damages  caused  by  its  neglect  to  exercise  reasonable  care  in 
the  construction 33  or  maintenance  of  drains  and  sewers  over 
which  it  has  control  34  is  recognized  even  in  the  states  which  im- 
pose no  liability  upon  the  corporation  for  want  of  care  in  the 
management  of  its  highways.35 

The  corporation  is  not  required  to  exercise  extraordinary  care 


ss  A  city  acts  ministerially  in 
the  construction  of  a  sewer.  Mont- 
gomery v.  Gilmer,  33  Ala.  116,  70 
Am.  Dec.  562.  See  note  to  Perry  v. 
Worcester,  66  Am.  Dec.  434,  442. 

3«Monticello  v.  Fox  (Ind.  App.), 
28  N.  E.  1025;  Kosmak  v.  New 
York,  117  N.  Y.  361,  22  N.  E.  945. 
See  note,  66  Am.  Dec.  436,  where 
many  cases  are  cited.  As  to  liabil- 
ity when  a  sewer  is  in  part  on  pri- 
vate property,  see  Stoddard  v.  Sara- 
toga Springs,  127  N.  Y.  261.  In 
Schroeder  v.  City  of  Baraboo,  93 
Wis.  95,  101,  the  court  said:  "It 
may  be  stated  generally  as  the  law 
that  where  private  property  is 
flooded  by  water  and  sewage, 
whether  such  property  be  on  the 
grade  of  the  street  or  below  such 
grade,  either  by  such  water  and 
sewage,  after  having  been  collected 
in  such  sewer  or  drain,  escaping 
therefrom  to  such  property  by  rea- 
son of  the  negligent  construction  of 
such  drain  or  sewer,  or  want  of 
proper  repair  of  the  same,  or  by 
negligent  discontinuance  thereof 
by  closing  up  the  outlet,  the  city 
is  liable.  Such  is  the  doctrine  of 
Gilluly  v.  Madison,  63  Wis.  518, 
and  to  the  same  effect  are  Hitchins 
v.  Frostburg,  68  Md.  100;  Defer  v. 


Detroit,  67  Mich.  346.  And  this  is 
so  though  the  sewer  or  drain  be 
originally  constructed  wholly  or  in 
part  only  by  private  parties,  if  the 
municipality  assumes  the  control 
and  maintenance  of  it.  Taylor  v. 
Austin,  32  Minn.  247." 

ss  Bates  v.  Westborough,  151 
Mass.  174,  23  N.  E.  1070,  7  L.  R.  A. 
156 ;  Rowe  v.  Portsmouth,  56  N.  H. 
291 ;  Winn  v.  Rutland,  52  Vt.  481 ; 
Oilman  v.  Laconia,  55  N.  H.  130,  20 
Am.  Rep.  175.  In  Massachusetts 
and  the  states  which  have  followed 
its  decisions,  the  liability  for  negli- 
gence of  servants  in  the  construc- 
tion and  management  of  sewers, 
rests  upon  the  same  ground  as  that 
in  the  construction  and  care  of 
water  systems,  gas  and  electric 
light  systems  and  the  like ;  namely, 
that  in  maintaining  such  facilities 
for  the  use  of  private  persons  who 
wish  to  pay  for  them,  the  corpora- 
tion is  acting  in  a  commercial  un- 
dertaking. See  review  of  Massa- 
chusetts law,  Hill  v.  Boston,  122 
Mass.  344;  Haley  v.  Boston,  191 
Mass.  291.  See,  further,  Weller  v. 
St.  Paul  (Minn.),  12  Am.  St.  754, 
note;  Davis  v.  Crawfordsville,  119 
Ind.  1,  12  Am.  St.  361,  note;  Haz- 
zard  v.  Council  Bluffs,  79  Iowa, 


§  351]  CONSTRUCTION  AND  CARE  OP  PUBLIC  WORKS.  359 

to  keep  its  sewers  in  proper  condition.36  It  is  liable  only  for 
negligence;  which  involves  a  lack  of  due  care  by  its  officers  or 
servants  in  the  performance  of  their  work,  or  a  failure  on  the 
part  of  the  corporate  authorities  to  remedy  some  evil  after  knowl- 
edge or  an  opportunity  for  knowledge,  or  a  deliberate  authoriza- 
tion of  an  injury  by  such  authorities.37 

§351.  Consequential  damages. — That  which  the  legislature 
legally  authorizes  cannot  be  wrongful.  Hence,  when  a  corpora- 
tion acts  within  the  limits  of  its  power  and  jurisdiction  and  pur- 
suant to  a  valid  act  of  the  legislature,  and  with  reasonable  care 
and  skill,  it  is  not  responsible  for  consequential  damages  to  pri- 
vate property  or  persons.38  Thus,  there  is  no  liability  for  conse- 
quential injuries  caused  by  establishing  or  changing  the  grade  of 
streets.39  The  state  has  absolute  control  over  the  streets  and 
highways,  and  all  adjoining  property  is  held  subject  to  the  con- 
dition that  the  grade  may  be  changed.  The  reason  for  this  rule 
is  thus  stated  in  a  leading  case :  40  "  Those  who  purchase  house- 
lots  bordering  upon  streets  are  supposed  to  calculate  the  chances 
of  such  elevations  and  reductions  as  the  increasing  population 
of  a  city  may  require  in  order  to  render  the  passage  to  and  from 
the  several  parts  of  the  city  safe  and  convenient;  and  as  their 

106;   Judge  v.   Meriden,   38   Conn,  duty  to  maintain  safe  streets,  by 

90;    Gilluly    v.    Madison,    63   Wis.  entrusting  the  care  of  them  to  an- 

518;   Owens  v.  City  of  Lancaster,  other. 

182  Pa.  St.  257,  38  Atl.  858 ;  Bliz-  ss  Dillon,  Mun.  Corp.,  II,  §  987 ; 

zard  v.  Danville,  175  Pa.  St.  479.  Callendar  v.  Marsh,  1  Pick.  (Mass.) 

SB  Netzer  v.  Crookston,  59  Minn.  417;   Alexander   v.   Milwaukee,   16 

244.  Wis.  2G4;   Terry  v.  Richmond,  94 

37  Haus  v.  Bethlehem,  134  Pa.  St.  Va.  537,  27  S.  E.  429,  38  L.  R.  A. 

12,    19    Atl.    437;    Vanderslice    v.  834;  Powell  v.  Wytheville,  95  Va. 

Philadelphia,  103  Pa.   St.  102.     A  73,  27  S.  E.  805. 

city  must  use  reasonable  care  when  39  Callendar    v.    Marsh,    1    Pick. 

it  is  constructing  sewers  to  avoid  417;    Green   v.   Reading,   9   Watts 

injury   to   individuals.     When   the  (Pa.)   382;  Lee  v.  Minneapolis,  22 

work  is  in  the  hands  of  a  contract-  Minn.  13 ;  Abel  v.  Minneapolis,  68 

or  the  weight   of   authority   is   to  Minn.  89,  70  N.  W.  851.    This  rule 

the  effect  that  the  city  as  well  as  is  recognized  in  every  state  except 

the  contractor  is  liable  for  injuries  Ohio.       See    McCombs    v.    Akron 

caused  by  negligence  regarding  ex-  Council,    15    Ohio,   474 ;    Cohen   v. 

cavations  in  the  streets ;  see  Welsh  Cleveland,  43  Ohio  St.  190. 

v.  St.  Louis,  73  Mo.  71 ;  but  this,  of  *o  Callendar    v.    Marsh,    1    Pick, 

course,  is  on  the  ground  that  the  417;  Northern  Transportation  Co. 

city  cannot  relieve  itself  from  the  v.  Chicago,  99  U.  S.  635. 


360  PUBLIC   CORPORATIONS.  [§351 

purchase  is  always  voluntary  they  may  indemnify  themselves  in 
the  price  of  the  lot  which  they  buy  or  take  the  chance  of  future 
improvements,  as  they  see  fit.  They  are  presumed  to  foresee  the 
changes  which  public  necessity  or  convenience  may  require." 
The  rule  is  the  same  although  the  property  owner  has  constructed 
buildings  with  reference  to  such  grade,41  and  his  access  is  entirely 
cut  off.  Changing  the  grade  under  such  circumstances  is  not 
taking  the  property  for  public  use.42  It  has  been  said  that  a 
municipal  corporation  is  liable  for  damages  caused  to  private 
property  by  grading  streets,  "when  a  private  owner  of  the  soil 
over  which  the  streets  are  laid,  if  improving  it  for  his  own  use," 
would  be  liable.43  On  this  principle  an  abutting  owner  can  re- 
cover damages  from  a  municipality  for  removing  the  natural 
support  of  his  land.44  But  the  prevailing  rule  is  that  there  is  no 
common  law  liability  for  damages,  although  the  street  is  so  graded 
as  to  cause  the  earth  to  fall  in.45  A  remedy  is  now  generally  pro- 
vided for  by  statute.  In  such  cases  it  is  exclusive  of  all  other 
remedies.46 

41  Henderson  v.   Minneapolis,  32    39  L.   R.   A.  345,  note,  and  cases 
Minn.  319.     The  power  to  make  a     cited. 

grade  and  Improve  streets  is  a  con-  43  O'Brien  v.  St.  Paul,  25  Minn, 

tinning  power.     Karst  v.  St.  Paul,  331;    Armstrong    v.    St.    Paul,    30 

etc.  R.  Co.,  22  Minn.  118.  Minn.  299. 

42  Northern    Transportation    Co.  4*  O'Brien  v.  St.  Paul,  25  Minn. 
v.  Chicago,  99  U.  S.  635.    See  2  Dil-  331 ;   Nichols  v.  Duluth,  40  Minn. 
Ion,  Mun.  Corp.    (4th  ed.),  §9956.  389. 

But    when    the    constitution    pro-  45  See  2  Dillon,  Mun.  Corp.   (4th 

vides  for  compensation  when  prop-  ed. ) ,  §  990,  note, 

erty  is  taken  or  "damaged,"  there  4e  Heiser  v.  New  York,  104  N.  Y. 

can  be  a  recovery.     See  Searle  v.  68;    Cole    v.    Muscatine,    14    Iowa 

Lead,  10  So.  D.  312,  73  N.  W.  101,  296. 


CHAPTER  XXIV. 


ACTIONS    AND    PROCEEDINGS. 


§352.  The  capacity  to  sue  and  be 
.     sued. 

353.  Notice  of  claim. 

354.  Mandamus. 

355.  Mandamus  to  enforce  duties 

toward  creditors. 

356.  Further  illustrations  of  the 

use  of  mandamus. 


§  357.  Quo  warranto. 

358.  Remedy  in  equity. 

359.  Certiorari. 

360.  Levy  of  execution  on  corpo- 

rate property. 

361.  Liability  to  garnishment. 


§  352.  The  capacity  to  sue  and  be  sued. — The  right  to  sue 
and  be  sued  is  a  power  incidental  to  all  public  corporations.  A 
question  has  sometimes  arisen  in  connection  with  gwasi-corpora- 
tions,  but  if  any  such  body  is  technically  a  corporation  it  may 
sue  and  be  sued  in  the  same  manner  as  a  municipal  corporation. 
The  name  in  which  actions  shall  be  brought  is  governed  by  the 
charter.  They  are  sometimes  brought  in  the  corporate  name  or 
in  the  name  of  the  inhabitants,  the  mayor,  the  county  commis- 
sioners or  trustees.  This  must  be  determined  by  examination  of 
the  charter  or  laws  of  the  state.1 

§  353.  Notice  of  claim. — Municipal  charters  generally  pro- 
vide that  no  action  shall  be  maintained  against  the  corporation 
unless  a  statement  in  writing  signed  by  the  person  injured  or 
claiming  to  be  injured  by  the  wrong  and  the  circumstances 
thereof  and  the  amount  of  damages  claimed  shall  be  presented 
to  the  proper  officer  within  a  designated  time.  As  already  stated, 
the  words  "claim  or  demand,"  when  used  in  such  a  statute,  do 
not  apply  to  a  tort.2  Under  Wisconsin  statutes,  it  was  held  that 

i  With  reference  to  the  right  to  ty  of  Tipton  v.  Kimberlin,  108  Ind. 

sue  a  county,  see  Ward  v.  Hartford  449,  9  N.  E.  407.     As  to  the  right 

County,  12  Conn.  404 ;  Whittaker  v.  of  a  village  to  sue,  see  Buffalo  v. 

Tuolumne  County,  96  Cal.  100,  30  Harling,  50  Minn.   551,  52  N.  W. 

Pac.  1016.    As  to  the  right  of  coun-  931. 

ty  commissioners  to  sue,  see  Coun-  2  §  204,  supra. 

361 


362 


PUBLIC   CORPORATIONS. 


[§354 


an  action  to  recover  back  illegal  taxes  paid  under  protest  sounds 
in  tort,  although  in  legal  fiction  it  is  an  action  on  an  implied  con- 
tract.3 

§354.  Mandamus. — The  writ  of  mandamus  will  issue  to  a 
public  corporation  or  its  officers  to  compel  the  performance  of  a 
ministerial  or  mandatory  duty  clearly  enjoined  by  law,  when 
there  is  no  other  specific  legal  remedy  adequate  to  enforce  the 
rights  of  the  relator  or  of  the  public.4  It  is  not  as  formerly  a 
prerogative  writ,5  but  in  modern  practice  ' '  is  nothing  more  than 
an  action  at  law  between  the  parties.  *  *  *  The  right  to  the 
writ  and  the  power  to  issue  it  has  ceased  to  depend  on  any  pre- 
rogative power,  and  it  is  now  regarded  as  an  ordinary  process  in 
cases  to  which  it  is  applicable.  It  is  a  writ  to  which  every  one  is 
entitled  when  it  is  the  appropriate  process  for  asserting  the  right 
he  claims. "  6  It  will  issue  only  where  there  is  a  clear  legal  right 


sFlieth  v.  City  of  Wausau,  93 
Wis.  446;  Ruggles  v.  Fond  du  Lac, 
53  Wis.  436. 

*  State  v.  Whitesides,  30  S.  C. 
579,  3  L.  R.  A.  777,  annotated ;  Peo- 
ple v.  Crotty,  93  111.  180 ;  Baker  v. 
Marshall,  15  Minn.  177  (Gil.  136)  ; 
State  v.  Southern  Minn.  Ry.  Co., 
18  Minn.  40  (Gil.  21).  In  Bassett 
v.  Atwater,  65  Conn.  355 ;  32  L.  R. 
A.  575,  Andrews,  C.  J.,  said:  "Man- 
damus, although  it  it  an  extraordi- 
nary legal  remedy,  is  in  the  nature 
of  an  equitable  interference,  sup- 
plementing the  deficiencies  of  the 
common  law.  It  will  ordinarily  be 
issued  where  a  legal  duty  is  estab- 
lished and  no  other  sufficient  means 
exists  for  enforcing  it.  When  the 
object  sought  can  be  equally  well 
obtained  by  other  means,  as  by  an 
action,  or  by  some  other  form  of 
proceeding,  then  mandamus  will 
not  lie.  Thus,  the  enforcement  of 
merely  private  obligations,  such  as 
those  arising  from  contracts,  are 
not  within  its  scope."  Mandamus 


cannot  usurp  the  functions  of  an 
appeal  or  writ  of  error.  State  v. 
Buhler,  90  Mo.  560.  It  must  be  re- 
membered that  the  writ  of  man- 
damus is  regulated  by  statute  in 
many  states  and  that  the  tendency 
is  toward  extending  its  use.  The 
writ  may,  under  some  statutes,  be 
used  whenever  it  will  afford  a 
proper  and  sufficient  remedy,  al- 
though there  may  be  another  spe- 
cific remedy.  See  People  v.  Com- 
missioners of  Highways,  130  111. 
482,  6  L.  R.  A.  161 ;  People  v.  Crot- 
ty, supra. 

5  See  §  200,  supra,  note ;  High, 
Extr.  Legal  Rem.,  §§  350,  606.  But 
it  is  not  a  writ  of  right  granted 
ex  debito  justifies,  but  of  sound 
judicial  discretion,  to  be  granted 
or  withheld  according  to  circum- 
stances. 

«Taney,  C.  J.,  in  Kentucky  v. 
Dennison,  24  How.  (U.  S.)  66,  97; 
Illinois  Central  Ry.  Co.  v.  People, 
143  111.  434,  19  L.  R.  A.  119. 


§354] 


ACTIONS  AND  PROCEEDINGS. 


363 


in  the  relator,7  a  corresponding  duty  in  the  defendant.8  and  the 
want  of  any  other  adequate  and  sufficient  legal  remedy.9  It 
will  therefore  not  issue  to  compel  the  performance  of  a  duty 
which  is  doubtful  or  discretionary.  Thus,  it  will  not  issue  to  a 
mayor  to  compel  him  to  issue  a  license,  when  the  issuance  of  such 
license  is  within  his  sound  legal  discretion.10  Judge  Dillon 
says:11  "If  the  inferior  tribunal,  corporate  body  or  public 
agent  or  officer  has  a  discretion,  and  acts  and  exercises  it,  this 
discretion  cannot  be  controlled  by  mandamus ;  but  if  the  inferior 
tribunal,  body,  officer  or  agents  refuse  to  act  in  cases  where  the 
law  requires  them  to  act,  and  the  party  has  no  other  legal  remedy, 
and  where,  in  justice,  there  ought  to  be  one,  a  mandamus  will  lie 
to  set  them  in  motion,  to  compel  action ;  and.  in  proper  cases,  the 
court  will  settle  the  legal  principles  which  should  govern,  but 
without  controlling  the  discretion  of  the  subordinate  jurisdic- 


7  State  v.  McCabe,  74  Wis.  481, 
43  N.  W.  322;  People  v.  State 
Board  of  Canvassers,  129  N.  Y.  360, 
14  L.  R.  A.  646 ;  People  v.  Stevens, 

5  Hill  (N.  Y.),  616;  Phoenix  Iron 
Co.  v.  Com.,  113  Pa.  St.  563. 

s  Com.  v.  Pittsburgh,  34  Pa.  St. 
496. 

»State  v.  Whitesides,  30  S.  C. 
579,  3  L.  R.  A.  777 ;  Ray  v.  Wilson, 
29  Fla.  342,  14  L.  R.  A.  773 ;  State 
v.  Manitowoc,  52  Wis.  423;  People 
v.  Chenango  County,  11  N.  Y.  563; 
State  v.  Langlie,  5  N.  Dak.  594,  32 
L.  R.  A.  723.  As  to  the  existence 
of  another  specific  remedy  under 
the  statute,  see  People  v.  Commis- 
sioners of  Highways,  130  111.  4S2, 

6  L.  R.  A.  161.    An  ordinary  action 
at  law  against  a  county  was  held 
not  a  specific  and  adequate  remedy 
to  defeat  a  mandamus  to  compel  a 
county  treasurer  to  pay  a  warrant 
out  of  funds  in  his  possession.  Ray 
v.  Wilson,  29  Fla.  342,  14  L.  R.  A. 
773,  with  note  on  "Mandamus  to 
compel  payment  of  municipal  debt 
by  custodian  of  municipal  funds." 
In  State  v.  Ames,  31  Minn.  440,  it 
was  said  that  such  a  suit  would  be 


neither  speedy  nor  adequate.  It 
has  usually  been  held,  however, 
that  mandamus  will  not  be  allowed 
when  suit  will  lie  against  the  mu- 
nicipality. See  Lexington  v.  Mul- 
liken,  7  Gray  (Mass.),  280;  State 
v.  Bridgman,  8  Kan.  307 ;  Sessions 
v.  Boykin,  78  Ala.  328.  But  see 
People  v.  Mead,  24  N.  Y.  114. 

10  Sherlock   v.    Stuart,   96   Mich. 
193,  21  L.  R.  A.  580 ;  State  v.  Tippe- 
canoe  Co.,  45  Ind.  501 ;  Deehan  v. 
Johnson,  141  Mass.  23.     Compare 
Braconier  v.  Packard,  136  Mass.  50. 

11  Dillon,  Mun.  Corp.    (4th  ed.), 
§  832.     As  to  the  right  to  issue  a 
mandamus    to    the    governor    and 
other  state  officers,  see  People  v. 
Governor,   29   Mich.   320,   note,   18 
Am.   Rep.  89;   Rice  v.   Austin,  19 
Minn.  103,  18  Am.  Rep.  330 ;  State 
v.  Kirkwood,  14  Iowa,  162;  State 
v.  Stone,  120  Mo.  428,  23  L.  R.  A. 
194 ;  Mauran  v.  Smith,  8  R.  I.  192, 
5  Am.  Rep.  564.    The  discretionary 
power  of  building  bridges  and  mak- 
ing local  improvements  will  not  be 
controlled  by  mandamus.    State  v. 
Essex  County,  23  N.  J.  L.  214. 


364  PUBLIC   CORPORATIONS.  [§355 

tion,  body,  or  officer. "  Thus,  a  court  cannot,  by  mandamus,  com- 
pel another  agency  to  act  in  favor  of  a  party  when  the  statute 
that  governs  that  agency  has  invested  it  with  discretion  to  do  so 
or  not,  as  it  judges  right ;  but,  the  court  can,  by  mandamus,  com- 
pel the  agency  to  exercise  the  discretion  reposed  in  it.  For  ex- 
ample, although  the  allowance  of  a  claim  rests  in  the  discretion 
of  an  auditing  board,  a  court  will  compel  the  board  to  hear  the 
claim,  and  pass  upon  it.12  The  writ  never  lies  to  enforce  private 
contracts.13 

§  355.  Mandamus  to  enforce  duties  toward  creditors. — Man- 
damus is  the  proper  remedy  to  compel  a  public  corporation  to 
perform  its  legal  duties  toward  its  creditors.14  As  a  general  rule, 
the  writ  will  not  issue  when  the  creditor  has  a  right  to  an  execu- 
tion and  levy  on  the  property  of  the  corporation  or  of  its  citizens, 
unless  the  creditor,  by  virtue  of  special  statutory  provision,  is 
entitled  to  the  levy  of  a  tax  for  the  payment  of  his  debt.15  In 
some  states  the  writ  will  issue  before  the  creditor  has  obtained 
judgment ; 16  but  in  the  federal  courts,  when  the  creditor  is  not 
entitled  to  a  specific  tax,  there  must  be  a  judgment  and  the  return 
of  an  execution  nulla  bona  before  a  writ  of  mandamus  will  issue.17 
The  writ  is  then  in  the  nature  of  an  execution18  and  may  be 
directed  to  the  corporation  or  its  officers,  and  its  execution  can- 


12  Boyd    v.    Detroit    Board    of  v.  Bridgeport,  44  Conn.  180.     See 

Health,  140  Mich.  306 ;  Safford  v.  note,  3  L.  R.  A.  265. 

Detroit  Board  of  Health,  110  Mich.  «  Meriwether  v.  Garrett,  102  II. 

81.    Where  a  statute  required  city  S.  472;  Baltimore  v.  Keeley  Insti- 

councils  to  enact  ordinances  to  en-  tute,  81  Md.  106,  27  L.  R.  A.  647; 

force  provisions  of  the  statute  pro-  Thomas  v.  Mason,  39  W.  Va.  526, 

hibiting    stock    from    running    at  26  L.  R.  A.  727. 

large,  it  was  held  that  mandamus  i5  Knox  County  v.  Aspinwall,  24 

should  be  granted  to  compel  a  coun-  How.   (U.  S.)  376. 

cil  to  legislate  on  the  matter.  Huey  16  Com.  v.  Pittsburgh,  34  Pa.  St. 

v.  Waldrop,  141  Ala.  318.    Manda-  496;   Rahway   Savings  Institution 

mus  will  issue  to  compel  the  grant-  v.  Rahway,  49  N.  J.  L.  384. 

ing  of  a  permit,  where  the  petition-  i7  Heine  v.  Levee  Commissioners, 

er  Is  absolutely  entitled  to  it,  even  19    Wall.    (U.    S.)    655;    Riggs   v. 

though  the  board  which  is  to  give  Johnson  County,  3  Wall.    (U.   S.) 

the  permit  has  authority  to  impose  166 ;  State  v.  Manitowoc,  52  Wis. 

conditions  in  the  same.    Cheney  v.  423. 

Barker,  198  Mass.  356.  18  Howard  v.  City  of  Huron,  5  S. 

is  Florida,  etc.  R.  Co.  v.  State,  31  Dak.  539,  26  L.  R.  A.  493. 
Fla.  482.  20  L.  R.  A.  419;  Parrott 


§  356]  ACTIONS  AND  PROCEEDINGS.  365 

not  be  interfered  with  by  the  state  authorities.19  After  judg- 
ment, mandamus  and  not  a  bill  in  equity  is  the  proper  remedy 
to  compel  the  levy  of  a  tax  for  the  payment  of  the  judgment.20 
Where  the  practice  is  to  permit  application  for  a  mandamus  to 
compel  payment  of  the  debt  without  requiring  the  creditor  first 
to  procure  a  judgment,  the  validity  of  the  debt  may  be  contested 
by  the  corporation  in  the  proceedings  for  mandamus;21  but 
where  the  creditor  has  reduced  the  debt  to  judgment,  all  original 
defenses  are,  of  course,  barred.22  But  where  the  town  authorities 
consented  to  a  judgment  in  favor  of  certain  bondholders,  and  it 
appeared  that  there  was  no  authority  to  issue  the  bonds,  man- 
damus to  compel  the  levy  of  a  tax  to  pay  the  judgment  was  re- 
fused.23 The  writ  does  not  confer  new  authority,24  and  therefore 
a  corporation  can  only  be  compelled  to  exert  its  legal  powers.  If 
it  has  no  power  to  raise  money  by  taxation,  it  cannot  be  compelled 
to  levy  a  tax.25 

§  356.  Further  illustrations  of  the  use  of  mandamus. — Sub- 
ject to  the  general  rules  stated  in  the  preceding  section,  man- 
damus is  the  proper  remedy,  on  the  petition  of  the  interested 
party,  to  compel  the  payment  of  the  salary  of  an  official,26  the 
levy  of  an  assessment  as  directed  by  the  charter,27  the  issue  of 
bonds  to  pay  for  a  public  improvement,28  the  completion  of  a 

is  Riggs  v.  Johnson  Co.,  6  Wall.  24  Rosenthal  v.  Board  of  Canvas- 

166 ;  Supervisors  v.  Rogers,  7  Wall,  sers,  50  Kan.  129,  19  L.  R.  A.  157 ; 

(U.  S.)  175.  The  effect  of  resigna-  State    v.    Secrest,    33    Minn.    381. 

tion  of  the  officers  to  be  proceeded  Mandamus  will  not  be  allowed  to 

against   is   considered   in   Rees   v.  compel  the  performance  of  an  act 

Watertown,  19  Wall.  107;  Badger  for  the  purpose  of  accomplishing 

v.   United   States,   93   U.    S.   599;  an  illegal  end.     State  v.  Hill,  32 

Amy  v.  Watertown,  130  U.  S.  301 ;  Minn.  275. 

Leavenworth   County  Commission-  25  Brownville  v.  Loague,  129  U. 

ers  v.  Sellew,  99  U.  S.  624;  2  Dil-  S.   493;    United    States   v.   Macon 

Ion,  Mun.  Corp.  (4th  ed.),  §861.  County  Court,  99  U.   S.  582.     An 

20  Louisiana  v.  Police  Jury,  111  officer  will  not  be  compelled  to  per- 
U.  S.  716 ;  Rock  Island  County  v.  form  an  act  which  is  outside  of  his 
United  States,  4  Wall.  (U.  S.)  435.  authority.     State  v.  Hill,  supra. 

21  Sherwood    v.    Rynearson,    141  26  Baker  v.  Johnson,  41  Me.  15. 
Mich.  92.  27  Reock  v.  Newark,  33  N.  J.  L. 

22  Howard  v.  Huron,  5  S.  D.  539,  129. 

26  L.  R.  A.  493.  z»  People  v.  Flagg,  46  N.  Y.  401. 

23  Union  Bank  v.  Com'rs  of  Ox-    See  People  v.  Batchellor,  35  N.  Y. 
ford,  119  N.  C.  214.    The  court  held     128,  13  Am.  Rep.  480. 

the  consent  ultra  vires. 


366 


PUBLIC    CORPORATIONS. 


[§356 


public  improvement,29  the  admission  to  an  office,30  the  restora- 
tion of  an  officer  wrongfully  removed  or  suspended,31  the  holding 
of  an  election  as  required  by  law  32  or  according  to  the  method 
prescribed  by  a  particular  statute,33  the  holding  by  a  municipal 
council  of  a  meeting  and  the  election  of  an  officer  as  required 
by  the  charter,34  a  board  to  meet  and  canvass  votes,35  a  canvassing 
board  to  omit  certain  illegal  ballots,36  officers  to  turn  over  funds 
actually  in  their  possession,37  to  call  a  new  election  where  the 
prior  election  was  inoperative,38  to  compel  the  acceptance  of  an 


29  People  v.  Brooklyn  Council,  22 
Barb.  (N.  Y.)  404. 

so  State  v.  Rahway,  33  N.  J.  L. 
Ill;  Ellison  v.  Raleigh,  89  N.  C. 
125.  But  in  some  states  it  has  been 
said  broadly  that  mandamus  is  not 
the  proper  remedy  to  try  title  to  an 
office.  See  People  v.  Detroit,  18 
Mich.  338;  Biggs  v.  McBride,  17 
Oreg.  640,  5  L.  R.  A.  115.  But  the 
more  exact  statement  would  seem 
to  be  that  the  remedy  cannot  be 
used  to  determine  title  between 
two  claimants  as  a  collateral  is- 
sue. State  v.  Atlantic  City,  52  N. 
J.  L.  332,  8  L.  R.  A.  697;  note  to 
Fleming  v.  Guthrie,  in  3  L.  R.  A. 
57.  In  Harwood  v.  Marshall,  9  Md. 
83,  it  was  held  that  mandamus  was 
the  proper  remedy  to  try  the  title 
to  an  office,  even  though  filled  de 
facto,  when,  by  reason  of  the  delay 
incident  to  the  remedy  by  quo  war- 
ranto,  relief  by  that  remedy  would 
be  ineffectual.  In  Massachusetts  a 
still  more  liberal  rule  obtains.  Ke- 
ough  v.  Holyoke,  156  Mass.  403; 
Luce  v.  Dukes  Co.,  153  Mass.  108. 
See  2  Dillon,  Mun.  Corp.  (4th  ed.), 
§846. 

si  State  v.  Jersey  City,  25  N.  J. 
L.  536.  Mandamus  is  not  the 
proper  remedy  to  restore  to  office  a 
person  who  has  been  wrongfully 
removed  and  whose  successor  has 
been  elected  and  has  entered  upon 
the  duties  of  the  office.  People  v. 


New  York  Infants'  Asylum,  122  N. 
Y.  190,  10  L.  R.  A.  381. 

32  People  v.  Fairbury,  51  111.  149. 

ss  State  v.  Wrightson,  56  N.  J.  L. 
126,  22  L.  R.  A.  548. 

s*  Lamb  v.  Lynd,  44  Pa.  St.  336. 

ss  Rosenthal  v.  State  Board  of 
Canvassers,  50  Kan.  129,  19  L.  R. 
A.  157.  To  compel  the  board  to 
disregard  certain  returns  which,  al- 
though regular  on  their  face,  are 
admittedly  the  result  of  an  illegal 
canvass.  People  v.  Rice,  129  N.  Y. 
449,  14  L.  R.  A.  643,  note.  But  not 
to  count  ballots  which  have  passed 
beyond  their  control.  State  v. 
Waggoner,  34  Neb.  116,  15  L.  R.  A. 
740.  It  will  not  issue  to  compel  a 
board  to  count  ballots  according  to 
the  provision  of  an  unconstitution- 
al statute.  Maynard  v.  Board  of 
District  Canvassers,  84  Mich.  298, 
11  L.  R.  A.  332. 

ss  People  v.  Board  of  County 
Canvassers,  129  N.  Y.  395,  14  L.  R. 
A.  624. 

37  But  mandamus  will  not  issue 
to  compel  what  cannot  be  done. 
Hence,  if  an  officer  has  wrongfully 
put  it  out  of  his  power  to  turn 
over  funds,  there  is  no  remedy  by 
mandamus.  Duval  County  Commis- 
sioners v.  Jacksonville,  36  Fla.  196, 
29  L.  R.  A.  416. 

ss  State  v.  South  Kingston,  18  R. 
I.  258,  22  L.  R.  A.  65. 


§356] 


ACTIONS   AND  PROCEEDINGS. 


367 


office,39  the  payment  of  a  warrant  by  the  county  treasurer,40  to 
proceed  in  a  legal  manner  and  divide  a  county,41  to  compel  a 
board  of  supervisors  to  include  certain  items  in  estimates  of  ex- 
penses of  the  county  for  the  current,  year,42  to  compel  highway 
commissioners  to  remove  a  certain  fence  from  across  a  public 
highway  when  the  facts  which  render  the  existence  of  the  fence 
illegal  are  conceded,43  the  issue  of  warrants  in  payment  of 
referee's  fees,44  the  delivery  of  the  office  room,  books  and  records 
of  an  office  to  a  public  officer,45  to  compel  a  member  of  a  board  to 
meet  with  the  other  members  and  elect  an  officer,46  to  compel 
county  officers  to  hold  their  office  at  the  legal  county  seat,47  or  to 
compel  a  mayor  to  recognize  a  person  as  a  member  of  the  city 
council.48  But  mandamus  will  not  issue  to  compel  a  county  treas- 


39  People    v.    Williams,    145    111. 
573,  24  L.  R.  A.  492,  annotated. 

40  Ray  v.  Wilson,  29  Fla.  342,  14 
L.  R.  A.  773. 

41  People  v.  Broorn,  138  N.  Y.  95, 
20  L.  R.  A.  81. 

42  State  v.  Robinson,  35  Neb.  401, 
17  L.  R.  A.  383. 

43  Brokaw  v.  Bloomington  Town- 
ship Commissioners,  130  111.  482,  6 
L.  R.  A.  161,  annotated. 

44  Guthrie  v.  Territory,  1  Okla. 
188,  21  L.  R.  A.  841. 

45  To  defeat  a  mandamus  in  such 
a  case  it  must  appear  that  the  in- 
cumbent has  a  colorable  title  and  is 
in    possession    under    a    claim    of 
right.     Stevens  v.  Carter,  27  Oreg. 
553,  35  L.  R.  A.  343.    But  see  de- 
cisions to  the  effect  that  the  court 
will  award  mandamus  in  such  cases 
to  put  the  petitioner  in  possession 
of  the  things  pertaining  to  the  of- 
fice if  he  shows  a  prima  facie  title, 
leaving  the  title  to  be  finally  liti- 
gated in  other  proceedings.    State 
v.  Johnson,  35  Fla.  2,  35  L.  R.  A. 
357.    See  elaborate  note  in  35  L.  R. 
A.  343,  on  "Mandamus  to  compel 
surrender  of  office."   State  v.  Sher- 
wood,  15   Minn.  221,  2   Am.   Rep. 
116;   State  v.  Churchill,  15  Minn. 


455  (Gil.  369)  ;  Merrill,  Mandamus, 
§  142.  But  the  writ  will  be  denied 
when  it  will  become  necessary  first 
to  determine  the  title  of  the  de 
facto  incumbent.  State  v.  Wil- 
liams, 25  Minn.  340. 

46  Statutes  which  specify  a  time 
within  which  a  public  officer  is  to 
perform   an   official   act   regarding 
the  rights  and  duties  of  others  are 
generally  directory.     Thus,   where 
the    law    requires    that    township 
trustees   shall    meet   on   a   certain 
day  and  elect  a  county  superintend- 
ent, and  they  are  unable  to  act  for 
want  of  a  quorum,  an  absent  mem- 
ber will  be  required  by  mandamus 
to  attend  at  a  later  date.    Wamp- 
ler  v.  State,  148  Ind.  557,  38  L.  R. 
A.  829;   State  v.  Smith,  22  Minn. 
218.     See  as  to  compelling  attend- 
ance of  individual  members,  Peo- 
ple v.  Whipple,  41  Mich.  548. 

47  State  v.  Langlie,  5  N.  Dak.  594, 
32  L.  R.  A.  723.     The  proceedings 
were    to    determine    whether    the 
county     seat     had     been     legally 
changed. 

48  Swindell  v.  State,  143  Ind.  153, 
35  L.  R.  A.  50.     See  Lawrence  v. 
Ingersoll,  88  Tenn.  52,  6  L.  R.  A. 
308. 


368  PUBLIC   CORPORATIONS.  [§  357 

urer  to  certify  that  all  taxes  are  paid  when  certain  illegal  taxes 
remain  unpaid,49  or  to  compel  township  trustees  to  sign  bonds 
issued  and  placed  in  the  hands  of  a  third  person  and  afterwards 
held  to  have  been  issued  under  an  unconstitutional  statute.50 

§  357.  Quo  warranto. — Quo  warranto  is  the  proper  proceed- 
ing by  which  to  determine  whether  a  public  power,  office,  priv- 
ilege, or  franchise  is  being  held  or  exercised  without  authority.51 
When  a  person  is  in  possession  of  an  office  under  color  of  right, 
the  validity  of  his  title  can  in  general  be  tested  only  on  an  infor- 
mation in  the  nature  of  a  quo  warranto.52  In  this  proceeding 
the  court  may  usually  go  behind  the  certificate  of  election,  or 
commission,  and  inquire  into  the  validity  of  the  election  or  ap- 
pointment.53 It  is  the  proper  writ  by  which  to  test  the  right  of  a 
person  to  preside  over  a  meeting  of  a  municipal  body  54  or  the 
right  to  a  seat  in  the  city_council.55  It  is  generally  held  in  this 
country  that  the  question  whether  a  public  corporation  has  been 
legally  created  can  be  tested  in  a  proceeding  of  this  nature 
brought  against  one  exercising  an  office  in  the  corporation.30  If 
it  appears  in  such  a  proceeding  that  no  corporation  either  de  jure 
or  de  facto  exists,  the  relator  is  entitled  to  judgment.57 

Under  the  English  practice,  the  information  for  usurping  a 

49  State  v.  Nelson,  41  Minn.  25,  ™  People  v.  Thatcher,  55  N.  Y. 

4  L.  R.  A.  300.  525. 

so  State  v.  Whitesides,  30  S.  C.  s*  Cochran  v.  McCleary,  22  Iowa, 

579,  3  L.  R.  A.  777.   See  further,  as  75. 

to  the  use  of  mandamus,  Smith  v.  ss  Corn.  v.  Meeser,  44  Pa.  St.  341. 

Boston,  1  Gray,  72 ;  People  v.  Me-  ss  People  v.  Carpenter,  24  N.  Y. 

Cormick,  106  111.  184 ;  Hill  v.  Good-  86 ;  State  v.  Parker,  25  Minn.  215 ; 

win,    56    N.    H.    441 ;    Milburn    v.  People  v.  Bruenneiner,  168  111.  482, 

Glynn  Co.,  112  Ga.  160;  Johnston  48  N.  E.  43.     In  England  the  in- 

v.  Mitchell,  120  Mich.  589 ;  Taylor  formation  is  refused  when  it  ap- 

v.  Kolb,  100  Ala.  603.  pears   that   no   corporation   exists. 

BI  It  was  originally  a  prerogative  The  leading  case  is  Rex  v.  Saun- 
writ,  but  the  tendency  is  to  reduce  ders,  3  East,  119. 
it  to  the  position  of  an  ordinary  B?  But,  at  least  where  the  pro- 
action.  It  does  not,  however,  is-  ceeding  is  against  the  governing 
sue  as  a  matter  of  course,  as  it  is  body  or  a  charter  officer,  the  exist- 
an  extraordinary  remedy.  ence  of  the  corporation  de  jure  is 

f>2  §  186,  supra;  State  v.  Sullivan,  directly    in    issue.      See,    however, 

45  Minn.  309,  11  L.  R.  A.  272 ;  State  State    v.    Weatherby,    45    Mo.    17 ; 

v.  Bulkeley,  61  Conn.  287,  14  L.  R.  State  v.  McReynolds,  61  Mo.  203. 
A.    657;    People   v.    Londoner,    13 
Colo.  303,  6  L.  R.  A.  444. 


§357] 


ACTIONS   AND  PROCEEDINGS. 


369 


special  franchise  by  a  corporation  must  be  brought  against  the 
corporation ;  but  for  usurping  a  franchise  to  be  a  corporation  it 
must  be  against  the  persons  usurping  it.58  Particular  statutes 
sometimes  alter  the  rule  in  this  country  in  the  case  of  municipal 
corporations,59  but  otherwise  the  proper  practice  seems  to  be  to 
test  the  existence  of  the  corporation  by  proceeding  against  it  in 
its  corporate  name,  rather  than  against  individuals  composing 
it.60 

The  proceeding  to  arrest  the  usurpation  of  a  franchise  rests  in 
the  sound  discretion  of  the  attorney-general 61  of  the  state,  and 
the  granting  of  the  writ  rests  in  the  sound  discretion  of  the  court 
or  judge.62  The  following  rules  have  been  stated  as  those  which 
should  guide  in  the  issuance  of  this  writ : 6S  First,  the  relator 
must  not  be  a  mere  stranger  coming  in  to  disturb  a  corporation 
with  which  he  has  no  concern.  Second,  he  must  not  have  con- 
curred in  the  act  of  which  he  now  complains  as  illegal.  Third, 
unless  there  is  fraud  or  intentional  violation  of  law,  it  must  ap- 
pear that  public  or  private  interests  will  not  be  seriously  affected 
by  the  ouster  of  the  incumbent. 


68  People  v.  Richardson,  4  Cow. 
(N.  Y.)  97,  109,  note.  Proceedings 
in  the  nature  of  quo  warranto,  for 
the  purpose  of  restraining  a  corpo- 
ration from  an  unlawful  exercise 
of  franchises,  must  be  against  the 
corporation,  and  not  merely  against 
the  officers  and  agents.  State  v. 
Somerby,  42  Minn.  55. 

se  State  v.  Cincinnati,  etc.  Gas 
Co.,  18  Ohio  St.  262.  An  associa- 
tion, although  not  incorporated, 
may  be  ousted  by  quo  warranto 
from  acting  "as  a  corporation." 
State  v.  Ackerman,  51  Ohio  St. 
163,  24  L.  R.  A.  298. 

so  it  has  been  held  that  the  re- 
lator, by  making  a  corporation  a 
defendant  under  its  corporate 
name,  estops  himself  to  deny  its 
existence.  People  v.  Spring  Val- 
ley, 129  111.  169.  But  the  weight 
of  authority  is  contra.  State  v. 

24 


Tracy,  48  Minn.  497;  People  v.  K. 
&  M.  T.  R.  Co.,  23  Wend.  193 ;  Peo- 
ple v.  Clark,  70  N.  Y.  518 ;  State  v. 
Comm'rs,  50  N.  J.  L.  457,  14  Atl. 
560. 

61  Robinson  v.  Jones,  14  Fla.  256. 
It  must  be  prosecuted  by,  and  not 
merely  with  the  consent  of,  the  at- 
torney-general when  the  object  is 
to  test  the  right  of  a  corporation 
to  exercise  a  franchise.     State  v. 
Tracy,  48  Minn.  497,  51  N.  W.  613. 
It  will  issue,  however,  without  the 
consent    of    the    attorney-general 
when  the  private  person  has  an  in- 
terest in  himself  distinct  from  that 
of  the  public,  as  a  right  to  an  office. 
In  re  Barnum,  27  Minn.  466. 

62  People  v.  Waite,  70  111.  25. 

83  Depue,  J.,  in  State  v.  Tolon,  33 
N.  J.  L.  195,  quoted  in  Dillon,  Mun. 
Corp.,  II,  §901. 


370  PUBLIC   CORPORATIONS.  [§358 

§  358.  Remedy  in  equity. — Before  a  court  of  equity  will  use 
its  powers  by  injunction  to  prevent  a  public  corporation  from 
exceeding  or  abusing  its  powers,  it  must  be  made  to  appear  that 
the  case  falls  within  one  of  the  recognized  heads  of  equity  juris- 
prudence, such  as  fraud,  irreparable  injury,  want  of  an  adequate 
remedy  at  law  or  the  prevention  of  a  multiplicity  of  suits.64 
There  appears  to  be  a  tendency,  however,  to  extend  this  juris- 
diction,65 and  it  is  well  settled  that  a  court  should  compel  a  cor- 
poration to  perform  all  its  duties  in  reference  to  property  which 
it  holds  in  trust.66 

Suits  to  prevent  public  corporations  from  exceeding  their  au- 
thority, or  to  have  their  illegal  acts  set  aside  or  corrected,  are 
properly  brought  in  the  name  of  the  attorney-general  of  the  state, 
or  in  the  name  of  the  state  on  the  relation  of  some  interested 
person.67  In  some  states,  on  the  theory  that  a  taxpayer  has  an 
interest  in  the  disbursement  of  the  funds  of  the  corporation  suffi- 
cient to  give  him  a  standing  in  equity,  and  in  others  by  statutory 
provision,  taxpayers  may  maintain  a  bill  in  equity,  on  behalf  of 
themselves  and  other  taxpayers,  to  prevent  the  corporation  from 
acting  ultra  vires,  or  from  disposing  without  authority  of  the 
property  of  the  corporation,  or  creating  without  authority  a 
debt  which  the  taxpayers  will  be  called  upon  to  pay.68  In  New 
York,  it  was  held  that  a  citizen  or  taxpayer  could  not  maintain 

e*  Brooklyn      v.      Meserole,      26  public  duties  imposed  by  law.    Mc- 

Wend.    (N.   Y.)    132;   Haywood  v.  Clain,  Crirn.  Law,  I,  §  183  and  cases 

Buffalo,  14  N.  Y.  534;  Minnesota  cited. 

Linseed  Oil  Co.  v.  Palmer,  20  Minn.  ee  Attorney-General  v.  Boston, 
424.  The  writ  of  prohibition  is  123  Mass.  4GO. 
sometimes  used  to  restrain  the  im-  «?  state  v.  Saline  County,  51  Mo. 
position  of  illegal  fines  and  penal-  350,  11  Am.  Rep.  454;  Attorney- 
ties.  An  injunction  is  directed  to  General  v.  Detroit,  26  Mich.  262. 
an  individual  and  a  writ  of  prohi-  In  People  v.  Field,  58  N.  Y.  491 
bition  to  an  inferior  court.  Smith  (Tweed  cases),  it  was  held  that  an 
v.  Whitney,  116  U.  S.  167 ;  Bluffton  action  to  recover  money  illegally 
v.  Silver,  63  Ind.  262.  It  will  not  taken  from  the  city  of  New  York 
issue  when  there  is  a  remedy  by  could  not  be  maintained  in  the 
appeal  or  certiorari.  State  v.  With-  name  of  the  attorney -general  of  the 
row,  108  Mo.  1 ;  Turner  v.  Forsyth,  state. 
78  Ga.  683.  es  Crampton  v.  Zabriskie,  101  U. 

652  Dillon,  Mun.  Corp.  (4th  ed.),  S.  601;  New  London  v.  Brainard, 

§908.     A   public   corporation   may  22   Conn.   552;    The  Liberty    Bell, 

also  be  indicted  for  nonfeasance  or  23    Fed.    843 ;    Baltimore    v.    Gill, 

misfeasance  in  the  performance  of  31  Md.  375.    As  to  the  right  to  en- 


§  359]  ACTIONS  AND  PROCEEDINGS.  371 

a  suit  to  restrain  or  avoid  a  corporate  act  alleged  to  be  illegal, 
unless  he  was  able  to  show  that  he  would  suffer  some  damage 
special  and  peculiar  to  himself,  distinct  from  that  of  other  inhab- 
itants.69 But  every  taxable  inhabitant,  and  perhaps  every  in- 
habitant, says  Judge  Dillon,70  has  such  an  interest  to  prevent  or 
avoid  illegal  or  unauthorized  corporate  acts  that  he  may  be  a  re- 
lator  on  whose  application  the  proper  public  officer  may,  on  be- 
half of  the  public,  file  the  requisite  bill  in  cases  which  fall  within 
the  jurisdiction  of  equity,  to  enjoin  the  menaced  wrong ;  or,  if  it 
has  been  consummated,  to  relieve  against  it.  A  court  of  equity 
will,  at  the  suit  of  one  or  more  taxpayers,  enjoin  a  municipality 
from  collecting  an  illegal  tax  on  real  property.71  The  mere  fact 
that  the  sale  would  create  a  cloud  on  the  title  is  sufficient  to  confer 
jurisdiction  upon  the  court.72  The  court  will  not  generally  in- 
terfere to  prevent  the  collection  of  an  illegal  tax  on  personal 
property,73  and  will  never  interfere  where  the  tax  is  merely 
irregular.74 

§359.  Certiorari. — The  writ  of  certiorari  lies  to  inferior 
courts  and  officers  exercising  power  of  a  judicial  nature  to  review 
judicial  proceedings  when  no  right  of  appeal  or  other  specific 
mode  of  review  is  provided.75  It  is  a  common-law  remedy  and 

join  a  threatened  misapplication  of  an  adequate  remedy  at  law  in  the 

funds,  see  Place  v.  Providence,  12  case  of  personal   property.     Dodd 

R.  1. 1 ;  Newmeyer  v.  Missouri,  etc.  v.  Hartford,  25  Conn.  231 ;  Young- 

By.  Co.,  52  Mo.  81,  14  Am.  Rep.  394,  blood  v.   Sexton,  32  Mich.  406,   2 

note.  Am.  Rep.  65 ;  Milwaukee  v.  Koeff- 

69  Doolittle  v.  Broome  County,  18  ler,  116  U.  S.  219.    But  there  are 

N.  T.  155 ;  Roosevelt  v.  Draper,  23  exceptions  to  this  rule.    See  Allen 

N.  Y.  318.    The  right  to  bring  such  v.  Baltimore  &  Ohio  Ry.  Co.,  114 

an  action   is   established  in   New  U.  S.  311. 

York  by  statute.     Code  Civ.  Proc.        73  Milwaukee  v.  Koeffler,  116  U. 

§  1925.    See  Kingsley  v.  Bowman,  S.  219. 

53  N.  Y.  Supp.  426 ;  Feeley  v.  Wur-        7*  Stone  v.  Mobile,  57  Ala.  61. 
ster,  25  Misc.  544,  54  N.  Y.  Supp.        75  In  re  Wilson,   32  Minn.   145; 

1060.  State  v.   St.   Paul,  34  Minn.  250; 

702  Dillon,  Mun.  Corp.  (4th  ed.),  Attorney-General   v.   Northampton, 

§  921 ;   Chicago  v.  Union  Building  143  Mass.  589 ;  State  v.  The  Judge, 

Ass'n,  102  111.  379.  etc.,  42  La.  Ann.  1089,  10  L.  R.  A. 

71  Dows  v.  Chicago,  11  Wall.  (U.  248 ;  Tomlinson  v.  Board  of  Equali- 
S.)  108;  State  Railway  Tax  Cases,  zation,  88  Tenn.  1,  6  L.  R.  A.  207; 
92  U.  S.  575.  State  v.  Hughes  Countv.   1   S.  I). 

72  Holland  v.  Baltimore,  11  Md.  292,  10  L.  R.  A.  588.    It  must  be 
186.    It  is  considered  that  there  is  remembered  that  the  use  of  thia 


372  PUBLIC   CORPORATIONS.  [§  360 

exists  in  such  cases,  although  not  provided  for  by  statute.76  Its 
application,  however,  has  in  some  cases  been  extended  beyond  its 
proper  function  at  common  law  by  statute  and  judicial  decision. 
The  other  remedy  referred  to  in  such  a  statute  has  been  held  to 
be  one  which  will  enable  the  relator  to  have  the  proceedings  com- 
plained of  annulled  as  void  and  as  not  including  a  mere  right  to 
sue  an  officer  acting  under  the  void  order.77  The  proceedings  of 
a  public  corporation,  so  far  as  they  are  of  a  judicial  nature,  may 
be  reviewed  and  errors  of  law  corrected  by  certiorari,78  but  it  is 
not  a  substitute  for  an  appeal  where  appeal  is  otherwise  provided 
for;  and  does  not  take  up  the  case,  unless  aided  by  statute,  for 
the  purpose  of  correcting  errors  of  fact.79  Thus,  the  legality  of 
convictions  in  municipal  courts,80  of  local  assessments81  or  the 
opening  of  a  street82  may  be  thus  determined  when  no  other 
mode  of  review  is  provided  by  law.  The  common-law  rule  that 
only  judicial  acts  can  be  reviewed  under  the  writ  has  been  some- 
what relaxed  by  some  of  our  courts,  and  it  has  been  used  to  test 
the  acts  of  municipal  corporations,  whether  judicial  or  legisla- 
tive.83 

§360.  Levy  of  execution  on  corporate  property. — The  na- 
ture of  the  powers  conferred  upon  public  corporations  requires 
that  they  shall  not  be  subject  to  the  ordinary  remedies  provided 

writ    is    regulated    by    statute   in  "Dwight  v.  Springfield,  4  Gray, 

many  states.    The  writ  of  certlorari  107. 

will  not  be  granted  for  the  purpose  83  Camden  v.  Mulford,  26  N.  J. 

of  reviewing  nugatory  proceedings.  L.  49.     On  certiorari  the  evidence 

State  v.  Village  of  Larnbertson,  37  returned  may  be  considered   only 

Minn.  362.     For  a  history  of  the  for    the    purpose    of    determining 

writ  of  certiorari,  see  an  article  by  whether  it  will  justify  the  finding 

Prof.  Goodnow,  "The  Writ  of  Cer-  — not   whether  the  superior  court 

tiorari,"  Pol.  Sci.  Quar.,  VI,  492.  would  have  reached  the  same  con- 

76  People  v.  New  York,  2  Hill  (N.  elusion.    Jackson  v.  People,  9  Mich. 
Y.),  9.  111.     The  proceedings  of  a  board 

77  State  ex  rel.  v.  Rose,  4  N.  D.  of  health   condemning  a   nuisance 
319,  26  L.  R.  A.  593.  are  not  reviewable  when  the  board 

78  Collins  v.  Davis,  57  Iowa,  256 ;  is   not   required   to  take  evidence, 
Oshkosh    v.    State,    59    Wis.    425 ;  but  may  act  upon  its  own  inspec- 
Jackson  v.  Michigan,  9  Mich.  111.  tion.     People  v.  Yonkers  Board  of 

79  State  v.  Bill,  13  Ired.   (N.  C.)  Health,  140  N.  Y.  1,  23  L.  K.  A. 
L.  373.  481. 

so  Taylor  v.  Americus,  39  Ga.  59. 
si  State  v.  Newark,  25  N.  J.  L. 


§361] 


ACTIONS   AND   PROCEEDINGS. 


373 


for  the  collection  of  debts  against  individuals.  In  order  that 
they  may  properly  provide  for  the  local  government  of  the  com- 
munity, it  is  essential  that  the  property  held  for  public  uses  shall 
be  exempt  from  execution.  Hence,  on  grounds  of  public  policy, 
it  is  held  that  neither  the  property,  the  revenues  raised  by  taxa- 
tion or  by  fines  and  penalties,  nor  tax  judgments  can  be  seized 
under  execution  upon  a  judgment  against  the  corporation.84 

§  361.  Liability  to  garnishment. — On  grounds  of  policy,  pub- 
lic corporations  are  generally  held  not  liable  to  garnishment  with 
respect  to  their  revenues,  their  debts,  or  the  salaries  of  their 
officials.  In  some  states  this  rule  has  been  established  on  prin- 
ciple,85 in  others  the  exemption  is  based  upon  construction  of 
particular  statutory  provisions,86  and  in  some  states  garnishment 
is  allowed  in  many  cases.87  An  officer  cannot  subject  the  funds 
of  a  municipality  to  garnishment  in  a  suit  to  collect  his  salary 
from  the  corporation.88  Nor  by  the  general  rule  can  a  city  be 
garnished  by  a  creditor  of  one  of  its  officers  or  employees.89  An 
officer's  salary,  when  not  exempt  on  other  grounds,  may  some- 


84  See,  supra,  §  82. 

ss  Burnham  v.  Fond  du  Lac,  15 
Wis.  211;  Merrell  v.  Campbell,  49 
Wls.  535 ;  Erie  v.  Knapp,  29  Pa.  St. 
173 ;  Roeller  v.  Ames,  33  Minn.  132 ; 
Merwin  v.  Chicago,  45  111.  133; 
Bireus  v.  Harper,  59  111.  21;  Droz 
v.  Baton  Rouge,  36  La.  Ann.  340; 
State  v.  Eberly,  12  Neb.  616 ;  1  Dil- 
lon, Mun.  Corp.  (4th  ed.),  §101; 
McDougall  v.  Hennepin  Co.,  4 
Minn.  184  (Gil.  — )  ;  Underbill  v. 
Calhoun,  63  Ala.  216.  See  note  to 
24  Am.  St.  73.  The  conflicting  au- 
thorities are  reviewed  in  Drake  on 
Attachment  (7th  ed.),  §516.  Gar- 
nishment of  taxes  due  from  an  in- 
dividual. Egerton  v.  Third  Munici- 
pality, 1  La.  Ann.  435.  A  city  may 
waive  its  exemption  by  appearing. 
Clapp  v.  Davis,  25  Iowa,  315. 

se  As  in  Iowa.  See  Jenks  v. 
Township,  45  Iowa,  554. 

ST  (Debt  due  from  a  town)  Whid- 
den  v.  Drake,  5  N.  H.  13;  (salary 


of  officer  due  from  a  city)  Newark 
v.  Funk,  15  Ohio  St.  462 ;  (debt  due 
to  a  town)  Bray  v.  Wallingford,  20 
Conn.  416;  (debt  due  from  a  school 
district)  Seymour  v.  School  Dis- 
trict, 53  Conn.  502;  (same;  county) 
Adams  v.  Tyler,  121  Mass.  380; 
(same;  a  city)  Laredo  v.  Nalle,  65 
Tex.  359. 

ss  Baltimore  v.  Root,  8  Md.  95. 
In  Waterbury  v.  Commissioners,  10 
Mont.  515,  24  Am.  St.  67,  it  is  held 
that  a  county  is  liable  to  garnish- 
ment for  a  debt  due  by  it  to  its 
officers,  under  a  statute  declaring 
that  all  "persons."  To  the  same 
effect,  Newark  v.  Funk,  15  Ohio  St. 
462. 

89  School  District  v.  Gage,  39 
Mich.  484;  Wallace  v.  Lawyer,  54 
Ind.  501,  23  Am.  Rep.  661 ;  Clark  v. 
Mobile,  36  Ala.  621  (salary  of 
teacher)  ;  Roeller  v.  Ames,  33 
Minn.  132  (mayor)  ;  McLellan  v. 
Young,  54  Ga.  399,  21  Am.  Rep. 


374  PUBLIC   CORPORATIONS.  [§  361 

times  be  reached  by  proceedings  supplemental  to  execution.90 
So  a  judgment  debtor  may,  under  some  forms  of  remedy  on  exe- 
cution, be  ordered  to  assign  to  his  creditor  a  debt  due  him  from 
a  municipality.91  Where  the  corporation  is  sought  to  be  held  as 
garnishee,  there  is  some  reason  for  holding  that  it  should  not  be 
required  to  become  involved  in  the  controversy.92  But  when  the 
corporation  is  the  principal  debtor,  there  seems  to  be  no  sufficient 
reason  why  its  creditors  should  be  deprived  of  the  remedy  which 
the  law  gives  to  the  creditors  of  natural  persons  and  private  cor- 
porations. 

276 ;    Bank    v.    Dibrell,    3    Sneed  »i  Knight  v.  Nash,  22  Minn.  456. 

(Tenn.),  379.     Contra,  Rodman  v.  »2  And  the  majority  of  the  de- 

Musselman,   12   Bush    (Ky.),   354,  cisions  seem  to  be  in  accord  with 

23  Am.  Rep.  724.     By  statute  sal-  this  rule.    A  city  is  not  subject  to 

ary  of  policeman  is  subject  to  gar-  garnishment  for  an  ordinary  debt 

nishment.      City    Council    v.    Van  due  from  it  to  a  third  person.  Cases 

Dorn,  41  Ala.  505.  cited,  supra. 
»o  Roeller  v.  Ames,  33  Minn.  132. 


INDEX 

[REFERENCES  ARE  TO  PAGES.] 


ABUTTERS— 

rights  of,  in  street,  70-76,  79. 
duty  to  repair  sidewalk,  344. 

ACTION  (see  ch.  XXIV)  — 
right  to  sue,  361. 
filing  claim  as  a  condition  precedent  to,  361. 

AGRICULTURAL  LANDS— 
annexation  of,  277-279. 

AMENDMENT— 
compulsory,  26. 
of  charter,  whether  special  legislation,  300. 

AMOTION  (see  OFFICER)  — 
ancient  power  of,  199. 
removal  of  elective  officer,  198. 
removal  of  appointive  officer,  199,  200. 
right  of  officer  to  hearing,  200. 
whether  judicial  power,  199. 
review  by  courts,  203. 

AMUSEMENTS— 
regulation  of,  50. 

ANNEXATION  (see  BOUNDABIES — LEGISLATIVE  CONTROL). 

APPEAL— 

in  condemnation  proceedings,  1]J2. 

APPOINTMENT  TO  OFFICE  (see  OFFICES  AND  OFFICERS). 

APPORTIONMENT  (see  SPECIAL  ASSESSMENTS)  — 
of  benefits  under  special  assessments,  119. 

ARBITRATION,  45. 

ASSESSMENTS— 

see  SPECIAL  ASSESSMENTS,  114. 

375 


d76  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
ATTORNEY— 

compensation  of,  195. 

ATTORNEY-GENERAL— 

control  over  quo  warranto  proceedings,  369. 

B. 

BAY  WINDOWS— 

projecting  over  sidewalk,  regulation  of,  77. 

BENEFITS— 

as  set-off  against  damages  in  condemnation  proceedings,  111. 

BIBLE— 

use  of,  in  public  schools,  88. 

BIDDERS— 

rights  and  remedies  of,  41. 

BOARDS— 

powers  vested  in,  169. 

BONA  FIDE  HOLDERS   (see  BONDS)  — 
of  municipal  bonds,  240. 
defenses  available  against,  240. 
right  to  rely  on  recitals,  241,  242. 

BONDS— 

power  of  public  ^Most-corporations  to  issue,  225. 

power  of  municipal  corporations,  226. 

authority  to  issue  negotiable  bonds,  225,  226. 

may  be  invalid,  226. 

bonds  payable  in  gold  coin,  225,  n. 

distinguished  from  power  to  incur  debt,  225. 

implied  power  to  issue  bonds,  225,  226. 

railway  aid  bonds,  226. 

ratification  of  illegal  bonds,  227. 

cannot  ratify  an  act  ultra  vires  the  corporation,  227. 

liability  for  value  received  for  illegal  bonds,  228. 

action  for  money  had  and  received,  228. 

right  to  restrain  issue  of  illegal  negotiable  bonds,  228. 

bonds  illegal  in  hands  of  innocent  purchaser,  228. 

can  be  issued  for  public  purposes  only,  229. 

what  are  such  purposes,  229. 

paving  streets,  229. 

constructing  water- works,  229. 

support  of  public  schools,  229. 

constructing  public  buildings,  229. 

acquiring  electric  light  plants,  229. 


INDEX.  377 

[REFERENCES  ARE  TO  PAGES.] 

BONDS — Continued. 

celebrating  Columbian  Exposition,  230. 

entertainment  of  visitors,  230. 

no  implied  authority  to  use  money  for  such  purposes,  230. 

treatment  of  habitual  drunkards,  230. 

construction  of  railways,  230. 

distinction  between  subscriptions  and  donations  to,  231. 

manufacturing  enterprises,  private,  231. 

construction  of  a  dam  to  aid  manufacturing  enterprise,  232. 

whether  purpose  public  to  be  determined  by  court,  232. 

conditions  precedent  to  legal  issue,  232  et  seq, 

how  imposed,  232. 

when  imposed  by  corporation,  right  of  innocent  holder,  233. 

waiver  of  condition  by  officials,  233. 

delegation  of  power  to  determine  performance  of  condition,  233. 

consent  of  people  as  a  condition,  233. 

such  consent  does  not  confer  power,  233. 

statutory  authority  must  be  followed,  234. 

effect  of  irregularities  in  voting,  234. 

contents  of  petition,  234. 

manner  of  calling  election,  234. 

notice,  234. 

majority  of  voters,  meaning  of,  235. 

"inhabitants"  means  legal  voters,  235. 

majority  of  qualified  electors,  235. 

two-thirds  of  qualified  voters,  235. 

location  or  completion  of  road  as  a  condition,  235. 

illustrations,  236,  237. 

time  of  completion,  when  material,  236. 

estoppel,  237. 

no  estoppel  against  defense  of  want  of  power,  237. 

no  estoppel  to  deny  authority  of  officers,  238. 

by  conduct,  238. 

by  retaining  consideration,  238. 

acquiescence,  239. 

payment  of  interest,  239. 

estoppel  by  judgment,  239. 

who  are  bona  fide  holders,  240. 

constructive  notice  of  defenses,  240. 

issue  in  violation  of  an  injunction,  240. 

presence  of  overdue  coupons,  240. 

must  take  notice  of  laws  of  state,  240. 

of  public  records,  241. 

of  what  appears  on  face  of  the  bonds,  241. 
defenses  against  a  bona  fide  holder,  241. 
want  of  power,  241. 
estoppel  by  recitals,  241. 


378  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

BONDS— Continued. 

statement  of  rule  by  Dillon,  242. 

bonds  issued  in  violation  of  an  express  statute,  241. 

statement  of  rule  by  Mr.  Justice  Strong,  242. 

authority  of  officers  to  make  recitals,  243. 

grounds  of  the  estoppel,  243. 

recital  that  bonds  have  been  issued  "in  conformity  to  law,"  243. 

"in  pursuance  of  statute,"  244. 

in  pursuance  of  an  order  of  county  court,  245. 
over-issues,  245. 

beyond  constitutional  limitation,  245. 
beyond  legislative  limitation,  245. 

when  authority  is  made  to  depend  upon  facts  of  record,  245. 
facts  which  appear  upon  assessment  rolls,  246. 

BOUNDARIES— 

determination  of,  by  legislature,  24,  276. 

legislative  power  to  change,  276. 

disposition  of  public  property  when  no  legislative  apportionment  is 

made,  279,  280,  and  note, 
annexation  of  territory,  276. 
what  territory  can  be  annexed,  278. 
contiguous  territory,  278. 
agricultural  lands,  279. 

city  cannot  annex  territory  of  another  corporation,  279. 
division  of  territory,  279. 
apportionment  of  property  and  debts  upon  division,  279. 

BREACH  OF  OFFICIAL  DUTY— 

wken  cause  for  removal  from  office,  200. 

BRIDGES  (see  NEGLIGENCE) — 
part  of  highway,  348. 

construction  of,  compelled  by  mandamus,  348. 
reasonable  care  required  in  construction,  348. 
must  be  a  reasonably  safe  structure,  348. 
guards  and  railings,  349. 
location  of,  a  governmental  act,  348. 
constructed  to  withstand  ordinary  storms,  349. 
not  to  support  extraordinary  weights,  349. 

BUILDING  MATERIAL— 

in  streets,  78. 

BY-LAW  (see  OBDINANCE) — 

synonymous  with  ordinance,  125. 


INDEX.  379 

[REFERENCES  ARE  TO  PAGES.] 
C. 

CELEBRATIONS— 

right  to  appropriate  money  for,  230. 

CEMETERIES— 

as  corporate  property,  82. 

CERTIORARI— 

nature  of  writ,  371. 

reviews  proceedings  of  a  judicial  nature,  371. 

a  common-law  remedy,  371. 

extended  by  statute,  372. 

meaning  of  "other  remedy,"  372. 

not  a  substitute  for  an  appeal,  372. 

CHARTER— 

not  a  contract,  25,  26,  256. 
subject  to  change  by  legislature,  26,  256. 
may  be  submitted  to  vote  of  inhabitants,  25. 
as  determining  powers,  30. 

CHARTER  POWERS  (see  POWEBS). 

CITY  GOVERNMENT— 

history  of  forms  of,  17,  n. 
forms  of,  17,  n. 

CITY  LIMITS— 
see  BOUNDARIES. 

CLASSIFICATION— 

as  a  basis  for  legislation,  290. 
based  upon  number,  293,  294. 
based  upon  population,  294. 

COASTING  (see  NEGLIGENCE)  — 

COLLATERAL  ATTACK  ON  VALIDITY  OF  ORGANIZATION,  2L 
liability  for  injuries  caused  by,  343,  311. 

COMMISSION  TYPE— 
explained,  17,  n. 
constitutionality,  18,  n. 

COMMONS  AND  PLAYGROUNDS,  82. 

COMPENSATION  (see  OFFICERS)  — 

upon  taking  property  by  eminent  domain,  109. 

rule  for  determining,  109. 

improvement,  109. 

valuations  founded  on  sentiment,  110. 


380  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

COMPENSATION— Continued, 
loss  of  profits,  110. 

diminished  value  of  merchandise  caused  by  removal,  110. 
of  officers,  190-195. 
de  facto  officers,  192. 
of  mayor,  195. 

COMPROMISE,  POWER  TO,  45. 

COMPULSORY  INCORPORATION— 
consent  of  inhabitants,  25. 
by  direct  legislative  action,  25. 

CONDITIONS  PRECEDENT  (see  BONDS)— 
to  entry  on  office,  181. 
to  issue  of  bonds,  232. 
by  what  authority  imposed,  232. 
rule  of  construction,  232. 
consent  of  people,  233. 
manner  of  obtaining  consent,  233. 
"majority  of  voters,"  "inhabitants,"  meaning  of,  235. 
location  of  railroad,  235. 
oath  of  office,  181. 
official  bond,  181. 

CONFLAGRATION— 

destruction  of  building  to  prevent,  60. 

CONGRESS,  POWER  TO  CREATE  CORPORATIONS,  20. 

CONSEQUENTIAL  DAMAGES  (see  NEGLIGENCE;  SEWEBS)  — 
liability  for,  359. 

resulting  from  exercise  of  legal  right,  110,  359. 
as  by  change  of  street  grade,  111. 

CONSTITUTIONAL  LIMITATIONS   (see  ch.  XX)  — 

upon  legislative  powers  to  grant  special  charters,  27-28. 

upon  legislative  power  over  corporations,  281. 

corporations  created  for  municipal  purposes,  281. 

general  laws,  definition,  282. 

requirement  of  a  uniform  system  of  government,  28,  283. 

object  of  such  a  provision,  283. 

does  not  prohibit  classification,  283. 

same  powers  possessed  by  all  corporations ;  law  is  general,  284. 

not  intended  to  secure  uniformity  in  exercise  of  police  power,  285. 

special  law  to  legalize  defective  incorporation,  285. 

illustrations  under  provision  requiring  uniformity,  285. 

laws  of  a  general  nature  shall  have  uniform  operation,  286. 

effect  of  this  provision,  287. 

its  construction,  287. 


INDEX.  381 

[REFERENCES  ARE  TO  PAGES.] 

CONSTITUTIONAL  LIMITATIONS— Continued, 
does  not  prevent  proper  classification,  287. 
illustrations,  287. 
local-option  laws,  289. 
classification,  290. 
must  have  a  basis  in  reason,  291. 
illustrations  of  proper  basis,  291,  292. 
class  may  contain  but  one  member,  293. 
geographical  conditions  as  a  basis,  294. 
population,  294. 
illustrations,  294. 
possible  accession  to  a  class,  295. 

regulation  of  the  "business"  and  "affairs"  of  a  corporation,  297. 
prohibition  of  special  legislation  when  a  general  law  can  be  made 

applicable,  299. 

whether  a  judicial  or  legislative  question,  299. 
amendment  or  repeal  of  charters,  300. 
an  evasion  of  the  constitutional  provision,  301. 

CONSTRUCTION— 

grant  of  power  of  eminent  domain,  construed  strictly,  100. 
of  grants  of  power,  32. 

CONTIGUOUS  TERRITORY  (see  BOUNDABIES)  — 
right  to  annex,  278. 

CONTINGENT  OBLIGATIONS— 
as  increasing  indebtedness,  251. 

CONTRACTOR  (see  TOBTS)  — 

liability  for  negligence  of,  313. 

CONTRACTS  (see  LEGISLATIVE  CONTROL) — 
charter  not  a  contract,  256. 
legislative  control  over  contracts,  270. 
no  vested  rights  in  license  fees,  268. 
contract  between  corporation  and  third  persons,  270. 
power  of  taxation,  part  of  contract,  270. 
effect  of  changing  manner  of  levying  tax,  270. 
exemption  of  certain  property  from  taxation,  271. 
'    rights  of  creditors  in  sinking  fund,  271. 

limitation  of  indebtedness  as  a  part  of  contract,  272. 

compulsory  contracts,  272. 

power  to  make,  38. 

restricting  power,  91. 

for  water  and  light,  83,  92. 

revocation  of,  by  corporation,  39. 

letting  to  lowest  bidder,  39-42. 

necessary  only  where  charter  provision,  39, 


382  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

CONTRACTS— Continued. 

lowest  responsible  bidder,  40. 

remedy  of  bidder,  41. 

remedy  of  taxpayer,  41. 

ratification  of  invalid,  42,  43. 

paying  when  not  legally  liable,  43,  44. 

indemnifying  officers,  44. 

compromise  and  arbitration,  45. 

delegating  power  in,  89,  90. 

restricting  future  action,  91. 

by  contract  for  term  of  years,  93. 

by  grant  of  exclusive  privilege,  94. 

liability  of  corporation  on,  208. 

personal  liability  of  officers  on,  208. 

ultra  vires  contracts,  38,  209. 

estoppel,  when  executed  by  one  party,  38,  210. 

irregularly  executed  contracts,  212. 

within  scope  of  general  power,  212. 

contracts  in  part  ultra  vires,  213. 

implied  contracts,  liability  on,  214. 

when  value  received,  214. 

illustrations,  215. 

recovery  back  of  illegal  taxes,  216. 

must  be  compulsory,  217. 

must  be  involuntary,  217. 

CONTROL  OF  STREETS— 
by  legislature,  66. 

CORPORATE  DUTIES  (see  NEGLIGENCE)— 
negligence  in  connection  with,  329,  et  seq. 

CORPORATE  POWERS  (see  POWEES)  — 

local  distinguished  from  state  powers,  81,  82. 

COUNCIL— 

history  of  the  forms  of,  17,  n. 
exercises  legislative  power,  170. 
its  administrative  powers,  170. 
its  organization,  170. 
must  act  as  a  unit,  171. 
place  of  meeting,  171. 
majority  of,  171. 
quorum  of,  171. 
motives  of  members,  174. 
interest  of  members,  174. 
control  by  courts,  176. 
power  of  appointment,  178. 


INDEX.  383 

[REFERENCES  ARE  TO  PAGES.] 

COUNTIES  (see  NEGLIGENCE)  — 
form  of  government,  10-11. 
liability  for  care  of  streets  and  roads,  336. 
nature,  5,  6,  8. 
powers  of,  10-11. 

COURTS  (see  MUNICIPAL  COURTS)  — 
mayor's  court,  196. 
power  to  control  boards  and  councils,  176. 

CREATION  OF  CORPORATIONS— 
by  legislative  authority  only,  19. 

power  of  legislature  to  delegate  governmental  power,  24. 
presumption  of,  22. 
form  of  legislation,  27. 
determination  of  boundaries,  24. 
compulsory  incorporation,  25. 
compulsory  changes,  26. 
by  United  States,  20. 
by  territorial  legislatures,  20. 
by  implication,  21. 
by  prescription,  22. 
by  recognition,  23. 
by  general  law,  27,  29. 
by  special  act,  27. 

CREDITORS  (see  BONDS)  — 
rights  of,  97,  364. 

aided  by  mandamus  (see  MANDAMUS). 
remedy  on  execution,  97,  364. 

CRIMINALS— 

liability  for  negligence  in  care  of,  328. 


D. 

DAIRIES— 

prohibition  of,  within  certain  limits,  167. 

DAMAGES  (see  NEGLIGENCE — EMINENT  DOMAIN). 

DEBTS  (see  BOUNDARIES)  — 
apportionment  of,  279. 

DE  FACTO  CORPORATIONS,  21. 

DE  FACTO  OFFICERS  (see  OFFICER)— 
who  are,  187. 
right  to  compensation,  192. 


384  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
DEFINITIONS  OF  PUBLIC  AND  MUNICIPAL  CORPORATIONS— 

public  corporations,  1-5. 
municipal  corporations,  6-8. 

DELEGATION  AND  RESTRICTION  OF  POWER— 

general  rule  as  to  delegation,  89. 
restricting  discretion  by  contracts,  etc.,  91. 
contract  for  a  term  of  years,  93. 
by  granting  exclusive  rights,  94. 
by  sale  of  property,  95. 

DES  MOINES  PLAN,  17,  n. 

DEPUTIES— 

liability  of,  308. 

DISCRETION  (see  LEGISLATIVE  CONTBOL) — 
in  granting  permits,  must  be  controlled,  166. 
delegation  and  restriction  of,  89-94. 

DISCRIMINATION— 

unjust,  by  city  officials  in  granting  privileges,  166. 

DISSOLUTION— 

of  corporation  by  legislature,  256. 
property  and  debts  upon,  263. 
may  be  dissolved  by  legislature,  256. 
disposition  of  property  upon,  263. 

DONATION— 

to  railroads,  230. 

for  private  benefit,  44,  45. 

DRAINAGE  (see  SEWEBS)  — 

of  lands,  assessments  for,  117. 

DRUNKARDS  AND  DISORDERLY  PERSONS— 
regulating  assembling  of,  162. 

E. 

ELECTRIC  LIGHT  PLANTS,  84. 
ELECTRIC  RAILWAY,  74. 

ELECTRICAL  BUREAU— 
private  business,  333. 

ELECTIONS— 

mandamus  to  compel,  366. 

ELEVATED  RAILWAYS— 
as  servitude,  74. 


INDEX.  385 

[REFERENCES  ARE  TO  PAGES.] 

EMINENT  DOMAIN— 

establishing  streets  by,  68. 

subject  treated  in  ch.  X,  p.  99  et  seq. 

definition,  99. 

distinguished  from  power  resting  on  necessity,  99. 

distinct  from  police  power,  99. 

distinct  from  power  of  taxation,  99. 

distinct  from  special  assessment,  99. 

may  be  delegated,  100. 

grant  of  power  of,  strictly  construed,  100. 

generally  private  property  only  taken,  100. 

may  take  every  species  of  property,  100. 

illustrations — lands,  houses,  stream  of  water,  etc.,  100. 

riparian  rights,  100. 

legislature  to  determine  quantity  of  estate,  100. 

whether  may  take  fee  or  merely  an  easement,  100. 

lands  situated  beyond  corporate  limit,  101. 

taken  for  public  use  only,  101. 

public  use  a  question  of  law,  101. 

necessity  for  taking,  a  legislative  question,  103. 

reviewed  by  courts  only  when  gross  error,  103. 

review  by  courts  as  to  quantity  taken,  104. 

illustrations  of  public  uses,  101. 

land  for  private  road,  101. 

land  for  ornamental  purposes,  102. 

property  already  appropriated  to  public  use,  102. 

construction  of  grant,  102. 

railroad  crossings,  102. 

cemetery,  for  highway,  102. 

right  to  condemn  franchise  of  a  water  company,  103. 

meaning  of  "property,"  103. 

what  is  a  taking,  105. 

physical  taking  not  essential,  105. 

right  to  take  water  front,  105. 

change  of  street  grade,  106. 

the  proceedings  to  condemn,  106. 

statutory,  strictly  followed,  106. 

hearing  necessary,  107, 

the  petition,  106. 

the  tribunal,  106. 

no  right  to  trial  by  jury,  106. 

notice  necessary  to  due  process  of  law,  107. 

by  whom  given,  107. 

by  advertisement,  108. 

compensation,  109. 

cannot  usually  be  submitted  to  arbitration,  45. 

must  be  full  reasonable  value,  109. 

25 


386  INDEX. 


[REFERENCES  ARE  TO  PAGES.] 


EMINENT  DOMAIN— Continued, 
improvements,  109. 
sentimental  considerations,  110. 
consequential  damages,  110. 
benefits,  right  to  set  off,  111. 
time  of  payment  of  damages,  111. 
right  of  appeal,  112. 
review  by  certiorari,  112. 

EMPLOYEE— 

distinguished  from  officer,  177. 

ENACTING  CLAUSE— 

to  ordinance,  131, 131,  n. 

EQUITY  (see  INJUNCTION)  — 

injunction  to  prevent  abuse  of  corporate  power,  370. 

proceedings  in  name  of  attorney-general,  370. 

in  name  of  some  interested  person,  370. 

proceeding  by  taxpayer,  370. 

case  must  fall  under  recognized  head  of  equity,  370. 

duties  in  connection  with  property  held  in  trust,  370. 

sale  of  real  property  under  illegal  tax,  371. 

of  personal  property,  371. 

ESTOPPEL  (see  BONDS)  — 
when  it  arises,  237. 

want  of  power  to  issue  bonds,  no  estoppel,  237. 
no  estoppel  to  deny  authority  of  officers,  238. 
by  conduct,  238. 
illustrations,  238,  239. 
retaining  consideration,  238. 
by  payment  of  interest,  239. 
by  acquiescence,  239. 
by  judgment,  239. 
by  recitals,  240.     See  RECITALS. 
to  defend  against  ultra  vires  contract,  210. 

EXCLUSIVE  FRANCHISE  (see  FRANCHISE). 

EXCLUSIVE  PRIVILEGES  (see  CONTRACTS). 

cannot  be  granted  without  express  legislative  authority,  94. 

not  favored,  94. 

doubts  resolved  against,  94. 

to  operate  street  railways,  94. 

to  provide  water  supply,  94. 

EXECUTION— 

public  property  of  corporation  not  subject  to,  372. 
private  property  of  corporation,  372. 
rule  in  New  England  states,  372. 


INDEX.  337 

[REFERENCES  ARE  TO  PAGES.] 

EXEMPTION— 

from  taxation,  114. 

from  local  assessments,  121. 

F. 
FAILURE  TO  ENFORCE  ORDINANCES  (see  ORDINANCE). 

FAST  DRIVING— 

by  members  of  salvage  corps,  155. 

FEE  (see  LICENSE). 

FERRY  FRANCHISES— 

subject  to  legislative  control,  262. 

power  to  maintain  ferry  may  be  revoked,  269. 

FIRE— 

ordinances  to  prevent,  60. 

destruction  of  building  to  prevent  spread  of,  60,  325. 

FIRE  DEPARTMENT,  61. 

FIRE  LIMITS— 

power  to  establish,  60. 

must  be  reasonably  exercised,  60. 

repair  of  building  within,  164. 

FIREMEN  (see  NEGLIGENCE) — 
negligence  of,  326. 

FIRE  PATROL— 

negligence  of,  city  not  liable  for,  327. 

FLAGMAN— 

at  railway  crossings,  155. 

FRANCHISE-- 

power  of  corporation  to  grant  in  streets,  76. 
of  water  and  light  company,  83,  93-95. 
exclusive  franchise,  94. 

FREEHOLDERS— 

special  privileges  to,  179. 

FRONTAGE— 

as  basis  for  apportioning  local  assessment,  120. 

FUNDS  AND  REVENUE  (see  TAXATION)  — 
legislative  control  over,  268. 
revenue  of  a  county,  not  its  property,  268. 
fund  for  disabled  officer,  control  over,  268. 


388  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
G. 

GARBAGE— 

regulating  manner  of  removal,  162. 

GARNISHMENT— 

public  corporations,  when  liable  to,  373. 

GAS  AND  WATER  WORKS  (see  POWERS)  — 
ownership  of,  by  corporation,  84. 
liability  of  corporation  for  negligence  in  connection  with,  331. 

GENERAL  LAWS  (see  CONSTITUTIONAL  LIMITATIONS) — 
definition  of,  282. 

GENERAL  WELFARE  CLAUSE— 
construction  of,  35. 

GIFTS— 

corporation  cannot  make,  44,  45. 

GOVERNMENTAL  DUTIES  (see  NEGLIGENCE)— 
what  are,  319. 

GRADE  OF  STREET  (see  STREET)  — 

damages  occasioned  by  change  of,  72,  359. 
whether  a  taking  of  property,  106,  359. 

H. 

HABITUAL  DRUNKARDS— 

power  to  provide  for  treatment  of,  61. 

HACKMEN— 

regulation  of,  161. 

HEALTH  (see  POLICE  POWER)  — 

corporate  powers  in  relation  to,  52. 

state  function,  81. 

quarantine  regulations,  53,  160. 

must  not  be  prohibitory  of  lawful  business,  50,  150. 

smoking  in  street-cars,  161. 

HEALTH  OFFICERS— 

liability  for  negligence  of,  309,  327. 

HIGHWAYS  (see  NEGLIGENCE;  ROADS  AND  STREETS) — 
duty  to  keep  in  repair,  334  et  seq. 

HIGHWAY  OFFICERS  (see  OFFICER)  — 
personal  liability  of,  308. 
when  no  funds,  308. 
for  defective  ways  and  bridges,  308. 


INDEX.  389 

[REFERENCES  ARE  TO  PAGES.] 

HOLDING  OVER— 
by  officers,  197. 

HORSE— 

objects  in  street  liable  to  frighten,  341. 

HOSPITALS— 
care  of,  327. 

HOTEL  RUNNERS— 
regulation  of,  161. 

I. 

ICE  AND  SNOW  (see  NEGLIGENCE)  — 

ordinances  requiring  abutters  to  remove,  77, 161. 

in  street  and  highway,  346. 

right  to  require  lot-owner  to  remove  from  sidewalk,  347. 

liability  for  injuries  occasioned  by,  347. 

ILLEGAL  TAXES— 

may  be  recovered  back,  216. 

when  paid  involuntarily  and  under  compulsion,  217. 

not  when  merely  irregular,  217. 

what  constitutes  coercion,  218. 

effect  of  protest,  218. 

necessity  of  overt  act,  218. 

paid  in  order  to  get  a  deed  recorded,  218. 

IMPLICATION— 

creation  of  corporation  by,  21. 

IMPLIED  CONTRACT— 

for  money  had  and  received,  228. 

consideration  for  illegal  bonds,  228. 

liability  on,  214. 

modifies  strict  doctrine  of  ultra  vires,  214. 

to  pay  back  illegal  taxes,  216. 

payment  must  have  been  compulsory,  217. 

IMPLIED  POWERS  (see  POWEES). 

INCOMPATIBLE  OFFICES,  184. 
see  OFFICES  AND  OFFICERS. 

INCORPORATION  (see  CREATION  OF  CORPORATIONS). 

INDEBTEDNESS— 

power  to  incur,  38,  247. 

limitations  upon,  247. 

measured  by  percentage  of  assessed  valuation,  247. 

notice  of  such  limitations,  247. 


390  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

INDEBTEDNE  S  S— Continued, 
meaning  of  indebtedness,  248. 
compulsory  obligations,  248. 
current  expenses,  248. 
necessity  no  excuse,  248. 
county  warrants,  248,  n,  251. 
obligations  in  exchange  for  property,  249. 
agreement  to  pay  rent  for  market-house,  249. 
bonds  to  pay  old  debt,  249. 
if  not  used  for  that  purpose  are  void,  250. 
to  pay  a  judgment,  250. 
amount  of  sinking  fund  to  be  deducted,  251. 
park  board  certificates,  251. 
contingent  obligations,  251. 
time  when  created  governs,  251. 

when  contingency  depends  upon  act  of  corporation,  252. 
contracts  requiring  annual  payments,  252. 
conflicting  decisions,  252,  253. 
warrants  drawn  against  future  taxes,  254. 

INDICTMENT— 

of  corporation,  370,  n. 

INDORSEMENT— 
of  warrant,  223. 

INFORMATION— 

in  nature  of  quo  warranto, 

INJUNCTION  (see  EQUITY)— 

against  enforcement  of  void  ordinance,  146. 

INSPECTION— 

of  sidewalks,  345. 

INTEREST  OF  MEMBERS  OF  COUNCIL,  174. 

INTOXICATING  LIQUORS— 
control  over  sales  of,  51,  159. 


J. 


JUDGE — 

of  municipal  courts,  64. 


JUDGMENT— 

public  property  cannot  be  sold  under,  372. 
estoppel  by,  239. 

JUDICIAL  OFFICERS  (see  OFFICER) — 
liability  of,  304. 


INDEX.  391 

[REFERENCES  ARE  TO  PAGES.] 
JUDICIAL  POWER  OF  CORPORATION  (see  MUNICIPAL  COUBTS). 

JURISDICTION— 
over  streets,  68. 
of  municipal  courts,  64. 

JURY  TRIAL— 

no  right  to,  in  condemnation  proceedings,  106. 

provided  for  by  certain  constitutions,  106. 

this  means  an  ordinary  jury  of  twelve,  106. 

right  to,  in  summary  proceedings,  65. 

no  right  to,  in  suits  for  violation  of  city  ordinances,  65,  196. 

when  right  exists  in  appellate  court,  65. 

L. 
LAND  (see  EMINENT  DOMAIN  ;  SPECIAL  ASSESSMENTS). 

LEGISLATIVE  POWER— 

to  create  public  corporations,  19. 
to  delegate  governmental  power,  24. 

LEGISLATIVE  CONTROL  (see  CONSTITUTIONAL  LIMITATIONS). 
the  general  rule,  256. 

control  over  municipal  charters,  25,  26,  256. 
charters  are  not  contracts,  25,  26,  256. 
may  submit  proposed  amendments  to  the  people,  25,  257. 
right  of  municipalities  to  self-government,  257. 
Michigan  doctrine,  258. 
contrary  authorities,  258. 
New  York  constitution,  259. 
power  over  property,  260. 
two  classes  of  property,  260. 
twofold  character,  261. 
property  acquired  by  eminent  domain,  260. 
highways,  use  of  may  be  regulated  by  legislature,  262. 
municipality  has  no  property  interest  in  street,  262. 
control  may  be  transferred  to  park  commissioners,  262. 
right  in  the  nature  of  franchises,  262. 
wharves  and  ferries,  262. 

over  property  when  corporation  is  dissolved,  263. 
over  public  officers,  264. 
police  officials,  264. 

may  control  their  appointment  and  payment,  264. 
municipal  board  of  police,  265. 
over  park  commissioners,  266. 
over  board  of  public  works,  267. 
over  board  of  water  commissioners,  267. 
officers  to  lay  out  streets,  267. 
the  mayor,  267. 
over  the  funds  and  revenues,  268. 


392  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

LEGI SLATI VE   CONTROL— Contl  nued. 

revenues  from  rights  in  the  nature  of  franchises,  269. 

over  contracts,  270. 

rights  of  persons  contracting  with  corporation,  270. 

right  of  a  creditor  entitled  to  a  tax,  270. 

changes  in  manner  of  levying  the  tax,  270. 

effect  of  exempting  property,  271. 

over  a  sinking  fund,  271. 

amount  of  municipal  indebtedness,  272. 

power  to  take  away  contract  rights,  272 

may  impose  certain  obligations  on  the  corporation,  272. 

when  for  a  public  purpose,  272. 

compulsory  taxation,  273. 

may  not  be  imposed  for  a  local  corporate  purpose,  274. 

construction  of  highways,  273. 

schools,  274. 

cannot  be  compelled  to  subscribe  for  stock  in  a  private  corporation, 

274. 

payment  of  a  just  debt,  275. 
control  over  boundaries,  276. 
may  annex  contiguous  territory,  277. 
may  not  annex  non-contiguous  lands,  277,  278. 
may  delegate  the  power  to  municipality,  277. 
illustrations  of  annexation,  279. 
may  provide  for  apportionment  of  property  and  debts  upon  division 

of  territory,  279. 
control  over  municipal  courts,  63. 

LEVY  OF  SPECIAL  TAX— 
compelled  by  mandamus,  364. 

LIABILITIES  (see  CONTRACTS;  TOUTS). 

LICENSEES  (see  NEGLIGENCE) — 

liability  of  corporation  for  acts  of,  343. 

LICENSES  (see  ORDINANCE;  LIQUOB  TRAFFIC;  NEGLIGENCE) — 
power  to  license,  56. 
when  implied,  57. 
as  tax  or  police  power,  56,  57. 
object  of,  under  police  power,  57. 
amount  of  fee,  reasonableness,  57,  157. 
occupations  which  may  be  licensed,  58. 
must  be  no  discrimination  in  granting,  58, 158. 
for  market  privilege,  59. 
acts  of  licensee,  liability  for,  343. 

LIMITATIONS  ON  INDEBTEDNESS  (see  INDEBTEDNESS). 


INDEX.  393 

[REFERENCES  ARE  TO  PAGES.] 

LIQUOR  TRAFFIC  (see  ORDINANCE)  — 
regulation  of,  by  ordinance,  51,  159. 
sales  limited  to  certain  districts,  159. 
district  cannot  be  determined  by  mayor,  164. 
druggists  forbidden  to  sell,  except  for  medical  purposes,  151. 
consent  of  freeholders  within  three  miles  of  place  of  business,  151. 
closing  saloons  at  certain  hours,  151. 
closing  during  church  hours,  151. 
license,  power  to  grant  cannot  be  delegated  to  mayor,  164. 

LOCAL  ASSESSMENTS  (see  SPECIAL  ASSESSMENTS). 
LOCAL-OPTION  LAWS,  289. 

LOCAL  SELF-GOVERNMENT— 
under  legislative  control,  257. 
protected  by  constitutional  provisions,  259. 
protected  by  decisions  under  certain  constitutions,  258. 
tendency  toward  encroachment  on,  259,  n. 


M. 

MAJORITY,  171. 

MANDAMUS— 

nature  of  the  writ,  362. 

an  extraordinary  legal  remedy,  362. 

when  will  issue,  362. 

not  to  govern  official  discretion,  363. 

but  will  to  compel  exercise  of  discretion,  363. 

to  enforce  duties  toward  creditors,  364. 

when  creditor  has  right  to  levy  on  property,  364. 

judgment  as  a  condition  precedent  to  issue,  364. 

rule  in  federal  courts,  364. 

when  in  nature  of  an  execution,  364. 

to  compel  levy  of  a  tax,  364. 

defense  against,  364. 

confers  no  new  authority,  365. 

to  compel  payment  of  officer's  salary,  365. 

the  levy  of  an  assessment,  365. 

admission  to  an  office,  366. 

the  holding  of  an  election,  366. 

further  illustrations  of  its  use,  365,  366. 

not,  as  a  rule,  the  remedy  to  try  title  to  office,  366,  n. 

to  compel  use  of  certain  text-book,  86. 

to  compel  letting  of  contract  to  lowest  bidder,  41. 


394  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

MANNER  OF  EXERCISING  POWER  (see  ORDINANCE)— 
when  determined  by  charter,  125. 
statutory  directions  must  be  observed,  126. 
when  no  mode  prescribed,  127. 
by  ordinance  or  resolution,  127. 

MARKETS— 

definition  of,  59. 

power  to  establish  and  regulate,  58, 158. 

under  supervision  of  police,  59. 

requirement  of  license  for  keeping,  59. 

prohibition  of  sales  of  articles  during  certain  hours,  59,  158. 

cannot  require  producers  to  sell  their  produce  from  market  stalls,  59. 

MARKET-HOUSES,  POWER  TO  OWN,  82. 

MAYOR  (see  OFFICES  AND  OFFICEBS)  — 

history  of  position  in  city  government,  17,  n. 

right  to  preside  over  council,  171. 

right  to  vote,  195. 

to  appoint  to  office,  224. 

general  executive  head,  17,  n,  195. 

mayor's  court,  196. 

right  to  compensation  for  services  as  lawyer,  192,  196. 

right  to  examine  books  of  city  officials,  196. 

MEETING— 

of  corporation,  169. 
essentials  of  valid,  169. 
notice  of,  169. 
of  common  council,  place  of,  171. 

MISDEMEANOR— 

to  vote  for  increase  of  salary,  194. 

MOB  (see  NEGLIGENCE). 

MOTIVE  OF  MEMBERS  OF  COUNCIL— 
power  of  courts  to  consider,  174. 

MULTIPLICITY  OF  SUITS— 

as  basis  of  equity  jurisdiction,  370. 

MUNICIPAL  IMPROVEMENTS  AND  SERVICES— 

measures  of  state  government,  81. 

measures  of  local  concern,  82. 

contracts  for  water  and  light,  83. 

waterworks,  gas  and  electric  light  plants,  84,  92-95. 

wharves  and  ferries,  86. 

schools,  86. 


INDEX.  395 

[REFERENCES  ARE  TO  PAGES.] 

MUNICIPALITY— 

the  English  municipality,  14,  15. 

its  origin  and  history,  14. 

organization,  14. 
the  American  municipality,  16. 

its  history,  16,  17,  n. 

MUNICIPAL  CORPORATIONS— 

definition,  and  nature,  1,  6,  7,  8. 
counties,  called  municipal  corporations,  6. 
school  district,  sometimes  called,  9. 
creation  of,  19. 

by  the  United  States,  20. 

by  prescription,  or  presumption,  22. 

by  implication,  21. 

by  recognition,  23. 

by  territorial  legislature,  20. 

invalid  organization,  21. 
forms  of  government,  17,  n. 
manner  of  legislative  action,  27. 
boundaries,  24. 
name,  24. 
legislative  power  to  invest  with  governmental  authority,  24. 

MUNICIPAL  COURTS  (see  JURY  TBIAL;  COURTS  ;  JUDICIAL  OFFICERS)— 
power  of  municipal  corporation  to  establish,  63. 
a  state  function,  81. 
duty  on  corporation,  63. 
control  of  legislature  over,  63. 
jurisdiction,  64. 

court  cannot  sit  outside  of  city  limits,  63. 
qualification  of  judge  and  jurors,  64. 
procedure  of  a  summary  nature,  65. 
right  to  jury  trial,  65. 

N. 

NAME— 

of  corporation,  24. 

NEGLIGENCE  (see  TORTS  ;  OFFICERS)— 

distinction  between  state  and  corporate  powers,  310. 

increase  of  liability  by  contract,  318. 

general  rules,  319. 

in  performance  of  solely  governmental  duties,  319. 

when  acting  as  agent  of  the  state,  319. 

failure  to  exercise  a  power,  310,  319,  320. 

neglect  to  enforce  an  ordinance,  320. 

acts  done  under  suspended  ordinance,  321. 


396  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

NEGLIGENCE— Continued, 
explosion  of  fireworks,  321. 
cattle  running  at  large,  321. 
acts  of  a  mob,  322. 
action  given  by  statute,  322. 
acts  of  police  officers,  323. 
failure  to  prevent  fires,  324. 

destruction  of  property  to  prevent  spread  of  fire,  325. 
acts  of  firemen,  326. 

negligent  handling  of  fire  apparatus,  326. 
negligent  driving,  326. 
negligence  of  fire  patrol,  327. 
further  illustrations,  327. 
negligence  of  members  of  board  of  health,  327. 
negligence  of  health  officers,  328. 
care  of  hospital,  328. 
care  of  prisoners,  328. 
for  injuries  to  prisoners,  328. 
care  of  the  poor,  329. 
care  of  public  school  buildings,  329. 
solely  corporate  duties,  329. 

liable  for  negligence  in  some  cases  in  same  manner  as  individuals,  330. 
as  owner  of  property,  330. 
in  management  of  a  market,  330. 
in  management  of  public  building  leased  for  profit,  330. 
in  connection  with  management  of  poor  farm,  330. 
condition  of  lot  owned  by  city,  330. 
in  management  of  a  cemetery,  331. 
condition  of  a  wharf,  331. 

defective  machinery  in  a  public  work-house,  331. 
when  manufacturing  and  selling  gas  as  an  individual,  331. 
condition  of  water-box  and  mains,  332. 
in  case  of  highways,  334. 

authorities  conflicting  as  to  liability  of  municipalities,  335. 
rule  in  New  England  states,  335. 
the  English  rule,  335. 
liability  of  public  guest-corporations,  336. 
duty  governmental,  336. 
distinction  between  liability  of  municipal  corporation  and  counties 

and  towns,  337. 

exceptions  to  the  general  rule,  337. 
when  duty  is  imposed  on  certain  officials,  337. 
extent  of  duty  to  care  for  highways,  337. 
reasonable  care  required,  337. 
street  must  be  public,  338. 
entire  width  of  street  must  be  safe,  338. 
rule  as  to  country  roads,  338. 


INDEX.  397 

[REFERENCES  ARE  TO  PAGES.] 

NEGLIGENCE— Continued, 
lighting  of  the  streets,  339. 
failure  to  light  as  evidence  of  negligence,  339. 
necessary  obstructions  allowed,  339. 
illustrations  of  such  obstructions,  339. 
things  having  a  tendency  to  frighten  horses,  341. 
when  obstruction  placed  by  an  individual,  341. 
basis  of  right  of  action  against  city,  341. 
lack  of  funds  to  repair,  342. 
duty  of  corporation  when  no  funds,  342. 
acts  of  licensees,  liability  for,  343. 
distinguished  from  mere  failure  to  act,  343. 
when  granted  without  authority,  343. 
where  acts  are  admittedly  dangerous,  343. 
sidewalks,  care  of,  344. 
when  constructed  by  individual,  344. 
duty  cannot  be  shifted  to  lot-owner,  344. 
owner  liable  for  his  own  acts  of  negligence,  345. 
inspection  of  sidewalks,  345. 
natural  decay  of  material,  345. 

corporation  not  an  insurer  of  safety  of  sidewalks,  346. 
what  are  defects  in  sidewalk,  346. 
guards  for  cellar-ways,  346. 
awnings,  signboards,  etc.,  346. 
ice  and  snow,  346. 

rule  affected  by  climate  of  locality,  347. 
mere  slipperiness  not  a  defect,  347. 
when  accumulated  in  ridges,  347. 
snow  in  country  road,  348. 
care  of  bridges,  348. 

reasonable  care  required  in  construction  and  care  of,  348. 
need  provide  for  ordinary  weights  only,  349. 
notice  of  defect  necessary  to  liability,  349. 
actual  or  constructive  notice,  349. 
construction  and  care  of  public  buildings,  351. 
in  construction  of  public  works,  see  ch.  XXIII. 
collection  and  discharge  of  surface  water,  352. 
for  sewers  (see  SEWEBS). 

NEGOTIABILITY— 
of  bonds,  225,  237. 
of  warrants,  221. 

NON-RESIDENTS— 

discrimination  against,  158. 

NOTICE— 

of  corporate  meeting,  169,  170. 
In  condemnation  proceedings,  107. 


398  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

NOTICE— Continued. 

of  claim  against  corporation,  361. 

in  proceedings  to  levy  special  assessments,  115. 

manner  of  giving,  in  condemnation  proceedings,  108. 

by  advertisement,  108. 

by  whom  given,  107. 

statement  of  general  rule,  108. 

of  defective  condition  of  highway,  349. 

actual  or  constructive,  349. 

NUISANCES  (see  POLICE  POWEB) — 
in  streets  what  are,  339. 
in  streets,  power  to  authorize,  73. 
power  to  abate,  54. 
must  be  an  actual  nuisance,  54,  55. 

merely  saying  a  thing  is  a  nuisance  not  sufficient,  54,  55. 
judicial  determination  ordinarily  required,  54. 
must  depend  upon  circumstances,  55. 
remedy  by  indictment  or  injunction,  55. 

0. 

OATH— 

condition  precedent  to  entry  on  office,  181. 
effect  of  failure  to  take,  181. 
form  of,  181. 

OBSTRUCTIONS  IN  STREETS,  73. 

OCCUPATIONS— 

licensing  of,  51,  56, 157. 

OFFICIAL  BOND— 

time  of  filing,  181. 

condition  precedent  to  entry  in  office,  181. 

effect  of  failure  to  file,  181. 

OFFICES  AND  OFFICERS— 
various  kinds  of  officers,  264. 

distinction  between  state  and  municipal  officers,  264. 
police  officials,  state  officers,  264. 
control  of  legislature  over  appointment,  264. 
the  mayor  a  municipal  officer,  267. 

a  state  officer  within  certain  constitutional  provisions,  267. 
members  of  board  of  public  works,  267. 
park  commissioner,  control  over,  266. 
power  of  corporation  to  indemnify,  44. 
who  are,  177. 
mere  financial  agents,  178. 
president  of  city  council,  178. 


INDEX.  399 


[REFERENCES  ARE  TO  PAGES.] 


OFFICES   AND   OFFICERS— Continued, 
members  of  detective  department,  178. 
distinction  between  municipal  and  state,  178. 
election  and  appointment  of,  178. 
power  to  appoint,  178. 
qualifications  of,  179. 
alien,  179. 
non-resident,  179. 
women,  179. 

property  qualifications,  179. 
membership  in  political  party,  179. 
preference  to  veterans,  180. 
conditions  precedent  to  entering  on  office,  181. 
acceptance,  181. 
taking  an  oath,  181. 
effect  of  failure  to  take  oath,  181. 
form  of  oath,  181. 
filing  a  bond,  181. 
effect  of  failure  to  file  bond,  181. 
time  of  qualification,  election  or  entry  on  office,  181. 
fiduciary  position  of  officers,  182. 
incompatible  offices,  184. 
what  are,  questions  for  the  courts,  184. 
cannot  hold,  common-law  rule,  184. 
lucrative  offices,  184,  186. 

illustrations  of  compatible  and  incompatible  offices,  184,  185. 
de  facto  officers,  187. 
reputation  of,  essential,  190. 
when  acts  of,  are  valid,  187. 
must  be  a  de  jure  office,  188. 
officer  appointed  under  unconstitutional  act,  189. 
one  elected  at  illegal  election,  190. 
lack  of  necessary  qualification,  190. 
when  no  confirmation,  190. 
compensation,  190. 
governed  by  statute,  190. 
under  legislative  control,  191. 
no  implied  right  to,  190. 
no  compensation  for  extra  services,  191. 
of  de  facto  officers,  192. 
salary  follows  legal  title,  192. 
not  recoverable  by  de  facto  officer,  193. 
office  may  be  abolished,  193. 

remedy  of  de  jure  officer  after  salary  paid  to  de  facto  officer,  193. 
increase  of  salary,  194. 
compensation  of  employees,  195. 
of  attorneys,  195. 


400  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

OFFICES   AND   OFFICERS— Continued, 
the  mayor,  see  MAYOB. 
holding  over  by  officer,  197. 

when  successor  is  without  legal  qualification,  197. 
when  failure  to  elect  successor,  197. 
resignation,  197. 
common-law  rule,  197. 
acceptance  of  resignation,  198. 
amotion,  199. 

removal  of  elective  officers,  198. 
whether  judicial  power,  199. 

removal ;  appointive  officers ;  indefinite  term,  199. 
removal ;  appointive  officers ;  fixed  term,  200. 
right  of  officer  to  hearing,  200. 
judicial  review  of  removal,  203. 
trying  title  to  office,  204. 
personal  liability  of  officers  on  contracts,  208. 
both  officer  and  corporation  may  be  liable,  208. 
liability  in  tort,  303. 

when  charged  with  discretionary  power,  303. 
liability  of  ministerial  officer,  303. 
no  liability  for  breach  of  public  duty,  304. 
officers  acting  judicially,  304. 
illustrations  of  such,  304. 
distinction  between  liability  of  judges  of  superior  and  inferior  court, 

305. 
liability  of  recorder  of  deeds,  305. 

sheriff,  307. 

highway  officer,  308. 

member  of  board  of  health,  309. 

supervisors,  309. 

clerk  of  court,  309. 

inspector  of  meats,  309. 
liability  for  loss  of  public  funds,  205. 
conflicting  rules,  205-207. 
officer  liable  absolutely,  205. 
liable  for  results  of  negligence,  206,  207. 
tendency  of  authorities,  207. 

ORDINANCE— 

regulating  use  of  streets,  77. 

definition,  125. 

nature  of  an  ordinance,  144. 

when  a  general  law,  144. 

contracts  made  with  reference  thereto,  144. 

binding  on  all  within  limits,  144. 

procedure  in  enactment  of,  126. 

police  ordinances  guest-criminal  law,  145. 


INDEX.  401 

[REFERENCES  ARE  TO  PAGES.] 

ORDINANCE— Continued. 

general  acts  should  be  by  ordinance,  127. 

are  legislative  acts,  127. 

must  act  by,  when,  127. 

form  of,  130. 

the  title,  130. 

constitutional  provision  as  to  title  of  statutes,  130. 

the  enacting  clause,  131. 

when  necessary,  131,  n. 

penalty,  131. 

discretion  of  court  as  to,  131. 

provision  for  forfeiture  of  a  license  on  conviction,  132. 

not  a  part  of  the  penalty,  132. 

necessity  for  recitals  in  ordinance,  133. 

must  be  enacted  at  legal  meeting  of  council,  133. 

Introduction  of,  133. 

provisions  for  reading  before  final  passage,  134. 

suspension  of  rules,  134. 

presumption  that  meeting  of  council  was  regular,  134. 

signing  by  clerk,  134. 

signature  of  mayor,  134. 

requirement  that  bill  shall  be  signed  in  open  session,  135. 

executive  approval,  135. 

must  be  in  manner  provided  for,  135. 

the  executive  veto,  137. 

publication,  137. 

notice  not  the  equivalent  of  publication,  137. 

when  publication  directory,  138. 

illegal  debts  incurred  for  publication,  138. 

manner  of  publication,  138. 

designation  of  paper,  138. 

paper  "printed  or  published  in  the  city,"  139. 

place  of  printing,  139. 

manner  and  sufficiency  of  publication,  139. 

time  and  period  of  publication,  140. 

proof  of  publication,  140. 

validity  of  ordinances,  142  (treated  in  ch.  XIV). 

motives  of  council,  174. 

may  be  valid  in  part,  143. 

good  and  bad  parts  must  be  distinct,  143. 

valid  as  to  certain  persons  only,  143. 

as  to  certain  sales,  143. 

injunction  against  enforcement  of  invalid  ordinance,  146. 

validity,  general  principles,  147. 

must  conform  to  charter,  147. 

must  be  constitutional,  147. 

must  conform  to  law,  147. 

29 


402  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

ORDINANCE— Continued. 

must  not  contravene  common  right,  150. 

must  be  general  and  impartial,  150. 

must  not  be  oppressive,  151. 

must  be  reasonable,  151. 

reasonableness,  a  question  for  the  court,  152. 

presumption  of  reasonableness,  153. 

pipes,  laying  of  in  street  between  certain  dates,  154. 

location  and  speed  of  vehicles  on  certain  streets,  154. 

speed  of  vehicles,  154. 

driving  by  members  of  salvage  corps,  155. 

handling  of  trains  over  streets  and  crossings,  155. 

limiting  speed  of  trains  within  limits,  155. 

boys  getting  on  moving  trains,  155. 

regulation  of  street  railways,  156. 

reports  of  passengers,  156. 

parades  and  speaking  in  streets,  156. 

music,  156. 

regulated,  not  prohibited,  156. 

arbitrary  discretion  of  officials,  156. 

fixing  license  fees,  157. 

discrimination  against  non-residents,  158. 

regulation  of  liquor  traffic,  159. 

fire  regulations,  160. 

quarantine  regulations,  160. 

regulation  of  second-hand  clothing  business,  160. 

hotel  runners  and  hackmen,  161. 

smoking  in  street-cars,  161. 

removing  snow  from  sidewalk,  161. 

closing  restaurants  at  certain  hour,  161. 

reporting  names  of  boarders,  161. 

reports  by  pawnbrokers,  161. 

shutting  off  gas  or  water  for  non-payment  of  rent,  162. 

garbage,  manner  of  removal  of,  162. 

prohibiting  certain  persons  from  frequenting  saloons,  etc.,  162. 

validity  dependent  upon  consent  of  officials,  162. 

when  an  improper  delegation  of  authority,  164. 

classification  of  such  ordinances,  162. 

decisions  sustaining  such  ordinance,  162. 

when  dependent  upon  nature  of  act,  165. 

beating  drums  in  street,  163. 

consent  of  residents  to  issue  of  saloon  license,  164. 

prohibiting  repair  of  wooden  building,  165. 

conditions  imposed  must  be  general  and  uniform,  166. 

unjust  discrimination,  166. 

act  of  officer  must  be  governed  by  general  rules,  166. 
ORNAMENTAL  USE    (see  EMINENT  DOMAIN)  — 

taking  land  for,  102. 


INDEX.  403 

[REFERENCES  ARE  TO  PAGES.] 
P. 

PARADES— 

right  to  use  street  for,  78  n,  156,  163. 
ordinance  requiring  consent  of  official,  163. 

PARK  COMMTSSIONERS— 

may  be  given  control  of  streets,  262. 

PARKS  (see  COMMONS  AND  PLAYGROUNDS) — 
use  of,  for  public  meetings,  157. 

PAUPERS— 
care  of,  61. 

PAVEMENT— 

a  local  improvement,  117. 

PAWNBROKERS— 

may  f>e  required  to  pay  a  license,  58. 

may  be  required  to  report  business  done,  161. 

PAYMENT— 

manner  of,  in  condemnation  proceedings,  111. 

PENALTY  (see  ORDINANCES)  — 
provided  in  ordinances,  131. 
revocation  of  license  as  part  of,  132. 

PERSONAL  LIABILITY— 

of  public  officers,  205  et  seq. 
for  local  assessment,  123. 

PLAN  OF  PUBLIC  WORK  (see  SEWERS;  NEGLIGENCE)  — 
negligence  in  adoption  of,  354. 

POLICE  OFFICERS  (see  NEGLIGENCE;  OFFICERS;  LEGISLATIVE  CONTROL). 

POLICE   POWER    (see  LICENSES;   MARKETS;   HABITUAL  DRUNKARDS; 

NUISANCES)  — 
nature  and  scope  of,  48. 
to  what  extends,  49. 
limitations  upon,  49. 
scope  of  power  of  municipality,  50. 
discretion  of  body  exercising,  49. 
regulation  of  occupations  and  amusements,  50. 
harmless  business  cannot  be  prohibited,  50. 
certain  occupation,  illegal  per  se,  51. 
regulation  of  liquor  business,  51. 
the  protection  of  health,  52. 
slaughter-houses,  regulation  of,  52. 
burial  of  the  dead,  52. 


404  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

POLICE  POWERS— Continued, 
care  of  sinks  and  cesspools,  52. 
quarantine  regulations,  52. 
prescribed  standard  for  articles  of  food,  53. 
destruction  of  dead  trees,  53. 

requirement  that  samples  of  milk  be  furnished  for  inspection,  53. 
dealing  in  second-hand  clothing,  54. 
nuisances,  54. 
abatement  of,  54. 
must  be  a  nuisance  in  fact,  54. 
depends  upon  circumstances,  55. 
regulation  of  wharves,  55. 
regulating  use  of  streets,  77. 
franchise  companies,  78. 
licenses,  56. 

may  be  as  tax  or  under  police  power,  56,  57. 
amount  of,  under  police  power,  56,  57. 
regulation  of  markets,  58. 
prevention  of  fires,  60. 
fire  departments,  61. 
fire  limits,  60. 

destruction  of  buildings,  60. 
care  of  indigent  and  infirm,  61. 
treatment  of  habitual  drunkards,  61. 

POOR— 

power  to  care  for,  61. 

POPULATION— 

as  a  basis  of  classification,  294. 

POWERS  (see  CONTEACT;  CORPORATE  POWERS;  EXCLUSIVE  FRANCHISES; 

EMINENT  DOMAIN;  POLICE  POWER;  JUDICIAL  POWER;  ROADS  AND 

STREETS;  TAXATION;  SPECIAL  ASSESSMENTS)  — 
distribution  of,  17  n,  168. 
general  scope,  30. 

constitutional  limitations  on  the  powers  of  government  apply,  36. 
classification  of  powers,  30. 
derived  from  charter,  30. 

cannot  be  increased  or  diminished  by  the  corporation,  31. 
judicial  comment  on  theory  of  corporate  powers,  31. 
construction,  32. 
usage  not  a  source  of  power,  33. 

powers  requiring  exercise  of  discretion  cannot  be  delegated,  89. 
ministerial  powers  may  be  delegated,  89. 
illustrations,  90. 

manner  of  granting  power  to  corporations,  34. 
practice  of  enumerating  powers  granted,  34. 
powers  commonly  granted,  34-35. 


INDEX.  405 

[REFERENCES  ARE  TO  PAGES.] 

POWERS— Continued. 

statutory  requirements  as  to  manner  of  exercising  power,  36. 

exercise  of,  beyond  corporate  limits,  36. 

authority  over  drainage  system,  36. 

inspection  of  dairy  herd,  36. 

to  enact  ordinances,  74. 

under  general  welfare  clause,  35. 

to  incur  debts,  38. 

to  make  ordinary  contracts,  38. 

ultra  vires  not  binding,  38. 

to  give  negotiable  instruments,  221,  225,  226. 

cannot  by  contract  limit  legislative  power,  91. 

to  revoke  a  contract,  39. 

to  ratify  contract,  42. 

contract  for  term  of  years,  93. 

exclusive  privileges,  94. 

to  borrow  money,  38. 

to  compromise  a  claim,  45. 

to  arbitrate  a  claim,  45. 

to  indemnify  officers,  44. 

to  pay  money  for  which  not  legally  liable,  43. 

to  own  property,  45. 

to  acquire  property  by  gift,  46. 

to  administer  trusts,  46. 

two  classes  of  municipal  functions,  47. 

measures  of  state  government,  81. 

schools,  81. 

poor,  81. 

health,  police  and  fire-departments,  81. 

militia,  81. 

courts,  81. 

wharves  and  bridges,  81. 
measures  of  purely  local  concern,  82. 

markets,  hayscales,  town  pumps,  etc.,  82. 

commons  and  playgrounds,  82. 

cemeteries,  82. 

fire  engines,  82. 

town  and  city  halls,  82. 

sewers,  82. 

libraries,  83. 

hospitals,  83. 

water  and  light  systems,  83. 
contracts  for  water  and  light,  83. 
water  and  light  plants,  84. 
wharves  and  ferries,  86. 
of  school  board  as  to  text-books,  86. 
how  exercised,  125. 


406  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

PRESCRIPTION— 

creation  of  corporation  by,  22. 
•creation  of  highway  by,  66. 

PRESENTMENT— 
of  warrant,  222. 

PRIVATE  CORPORATION— 
how  created,  2. 
for  benefit  of  members,  2. 

PRIVATE  ROADS,  101. 

PROCEEDINGS— 

in  taking  property  for  public  use,  106. 
to  enforce  municipal  ordinance,  65. 
to  levy  special  assessment,  115. 
to  remove  an  officer,  200. 

PROPERTY— 

definition  of,  103. 

what  is,  in  law  of  eminent  domain,  103. 
appropriated  to  public  use,  102. 
power  of  corporation  to  hold,  45. 
power  to  acquire  by  gift,  46. 
power  to  administer  trusts,  46. 
different  classes  of  municipal,  47. 
power  to  sell  or  lease,  95-97. 
alienation  by  law,  97. 

PUBLIC  CORPORATIONS— 

created  for  public  purposes,  2-4. 

classification  of,  5. 

distinguished  from  private,  2,  3. 

forms  of,  9-10. 

includes  public  gwasi-corporations,  5-8. 

includes  municipal  corporations,  5-8. 

includes  territory  and  inhabitants,  5. 

PUBLIC  FUNDS  (see  OFFICE)  — 

liability  of  officer  for  loss  of,  205. 

PUBLIC  PROPERTY  (see  NEGLIGENCE)  — 
subject  to  control  of  legislature,  2GO. 
includes  what,  260. 

on  division  of  corporation,  279.     See  BOUNDABIES. 
negligence  in  case  of,  351. 
condition  of  public  building,  351. 
dangerous  condition  of  school  building,  329. 

PUBLIC  QUASI-CORPORATIONS,  5,  7. 


INDEX.  407 

[REFERENCES  ARE  TO  PAGES.] 
Q. 

QUALIFICATIONS  (see  OFFICERS)  — 
of  officers,  179. 
of  jurors  in  municipal  court,  64. 

QUARANTINE  REGULATIONS  (see  POLICE  POWER;  HEALTH)— 
proper  police  regulations,  160. 

QUASI-CORPORATIONS. 
defined,  5,  7. 

QUASI-PUBLIC  CORPORATIONS,  4,  5. 

QUORUM— 

of  council  or  other  body,  171. 

QUO  WARRANTO— 

nature  of  writ,  368. 
discretion  of  judge,  369. 
rules  governing  its  issuance,  369. 
proper  remedy  to  try  title  to  office,  368. 
or  right  to  preside  over  a  municipal  body,  368. 
whether  corporation  legally  created,  368. 
proceedings  against  one  assuming  to  be  an  officer,  368. 
the  English  practice,  368. 

usurpation  of  franchise,  proceeding  in  discretion  of  attorney-general, 
369. 


R. 

RAILWAY  CROSSINGS  (see  ORDINANCE)  — 
speed  of  train  at,  155. 
use  of,  during  certain  hours  of  day,  156. 

RAILWAYS  (see  SERVITUDES;  ROADS  AND  STREETS)  — 
in  streets,  74  75. 
as  additional  servitude,  74,  75. 
ordinary  street  railway,  74. 
electric  street  railways,  74. 
poles  of  electric  railways,  74. 
elevated  railway,  as  servitude,  74. 
speed  of  trains,  78. 

READING  ORDINANCE,  134. 

REASONABLENESS— 

of  ordinance,  151.    See  ORDINANCE. 


408  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

RECITALS  IN  BONDS  (see  BONDS)  — 
effect  of  recitals,  241. 
authority  of  officers  to  make,  243. 

that  bonds  have  been  issued  "in  conformity  to  law,"  243. 
effect  of  on  overissue  of  bonds,  245. 
when  facts  are  to  be  determined  by  records,  246. 

RECOGNITION  BY  LEGISLATURE— 
validates  corporation,  23. 

RECORDER  OF  DEEDS  (see  OFFICER)— 
liability  of,  305. 

performs  duties  to  individuals,  305. 
liability  for  failure  to  record  deed  correctly,  306. 
liability  for  recording  paper  not  entitled  to  record,  306. 
liability  for  giving  an  erroneous  certificate,  306. 

REMOVAL  (see  AMOTION;  OFFICES) — 
of  officers,  198-203. 

RESIGNATION  (see  OFFICER)  — 
common  rule  as  to,  197. 
necessity  for  acceptance  of,  197. 
effect  of,  198. 

RESOLUTION— 

distinguished  from  ordinance,  126. 
council  may  act  by,  when,  127. 
illustrations,  128. 

RESTAURANT— 

time  of  closing,  161. 

RESTRICTION  OF  POWER— 
by  contract,  93-95. 
by  exclusive  franchises,  94. 
by  alienation  of  property,  95. 

RIOT  (see  NEGLIGENCE). 

ROAD  AND  STREETS  (see  RAILWAYS;  SERVITUDES;  NEGLIGENCE) 
control  of  legislature  over,  66,  262. 
may  be  delegated  to  corporation,  66. 
how  street  established,  66. 
prescriptive  rights,  66. 
dedication,  67. 
statutory  dedication,  68. 
dedication  by  corporation,  68. 
by  eminent  domain,  68. 
relation  of  corporation  toward  streets,  68. 
power  of  corporation  over,  68. 


INDEX.  409 

[REFERENCES  ARE  TO  PAGES.] 

ROAD    AND    STREETS— Continued, 
perversion  of  to  private  use,  69. 
property  rights  of  corporation  in,  69. 
remedies  of  corporation  for  obstruction,  69. 
ejectment  by  municipality,  69. 
rights  remaining  in  fee-owner,  70. 
new  uses  and  servitudes,  71,  73-75. 
municipal  corporation,  rights  as  fee-owner,  72. 
rights  of  abutters  as  such,  72. 
nuisances,  73. 
subway,  74. 
street-railways,  74. 
steam-railroads,  74. 
sewers,  water,  gas,  pipes,  etc.,  75. 
electric-light  systems,  75. 
telephone  and  telegraph  systems,  75,  76. 
franchises,  power  of  municipal  corporation,  76. 
police  ordinances  regulating  use  of  streets,  77. 
controlling  franchise-companies,  78. 
vacation;  power  of  municipality,  79. 
vacation ;  rights  of  abutters,  79. 
liability  in  tort  for  change  of  grade,  359. 
liability  for  removing  support  of  land,  360. 

S. 
SALARY  (see  COMPENSATION;  OFFICES). 

SCHOOLS  (see  SCHOOL  BOARDS)  — 
compulsory  support  of,  274. 
support  of,  a  state  purpose,  81,  274. 

SCHOOL  BOARDS  (see  TEXT-BOOKS)— 
powers  of,  86. 

may  prescribe  text-books,  86,  87. 
use  of  Bible  in  schools,  88. 
may  prescribe  health  regulations,  88. 
vaccination,  88. 

SCHOOL  BUILDINGS  (see  PUBLIC  BUILDINGS;  NEGLIGENCE)  — 
dangerous  condition  of,  liability  for,  329. 

SCHOOL  DISTRICT  (see  PUBLIC  SCHOOLS)— 
description  of,  8. 
powers  of,  8,  9. 

SCREENS  AND  WINDOW  BLINDS— 
requirement  of  in  saloons,  58. 

SECOND-HAND  CLOTHING— 
regulating  sale  of,  54,  160. 


410  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
SECURITIES  (see  BONDS;  WARRANTS). 

SERVITUDES   (see  ROADS  AND  STREETS)  — 
right  of  abutting  owners,  70,  72,  73. 
railways  as  additional  servitudes,  74. 
ordinary  street  railways,  74. 
electric  railways,  74. 
poles  of  electric  railways,  74. 
surface  railway  operated  by  steam  motors,  74. 
elevated  railways,  74. 
telegraph  and  telephone  poles,  75. 
location  of  the  fee  as  test,  74. 

SEWERS   (see  NEGLIGENCE)  — 
matter  of  local  concern,  82. 
failure  to  construct,  no  liability,  354. 
determination  to  construct,  a  legislative  act,  354. 
adoption  of  plan  of,  354. 
must  exercise  care  in,  354. 
selection  of  engineers,  354. 
adoption  of  reasonably  adequate  system,  355. 
maintaining  inadequate  sewer,  355. 
when  results  in  direct  injury  to  property,  355,  356. 
negligence  in  construction,  358. 
in  maintenance,  358. 

consequential  damages  resulting  from  public  works,  359. 
change  of  grade  of  street,  359. 
removing  natural  support  of  land,  359. 
not  a  new  servitude,  75. 

SIDEWALKS,  300— 

see  NEGLIGENCE  ;  ROADS  AND  STREETS. 

SINKING  FUND— 

contract  rights  in,  271. 

as  affecting  indebtedness  of  corporation,  251. 

SNOW— 

removal  of,  from  sidewalks,  161,  346. 
in  country  highway,  348. 

SPECIAL  ASSESSMENTS,  114. 
see  TAXATION. 
a  form  of  taxation,  114. 
power  to  authorize,  114. 
constitutionality  of,  115. 
corporation  has  no  implied  power  to  levy,  134. 
theory  of,  114. 

distinguished  from  eminent  domain,  115. 
purpose  for  which  levied,  116. 


INDEX.  411 

[REFERENCES  ARE  TO  PAGES.] 

SPECIAL    ASSESSMENTS— Continued, 
due  process  of  law,  115. 
what  required  for,  115. 
the  proceeding,  notice,  etc.,  115. 
right  of  appeal,  116. 
ordinary  element  for  valid  tax,  116. 
must  be  a  special  local  benefit,  116. 
improvement  must  partake  of  permanent  nature,  116. 
sprinkling  streets,  117. 

maintaining  boulevards  and  pleasure-ways,  117. 
grading  a  street,  117. 
paving,  117. 

constructing  sidewalk,  117. 
constructing  drains,  117. 
sewers  and  culverts,  118. 
laying  water  pipes,  118. 
apportionment,  methods  of,  118. 
by  benefits,  119. 

determination  of  benefits  by  commissioners,  119. 
impeachable  for  fraud  and  manifest  mistake  only,  119. 
the  frontage  rule,  120. 

not  applicable  to  farm  or  suburban  property,  120. 
levied  upon  property  exempt  from  taxation,  121. 
illustrations,  121,  122.  « 

manner  of  collecting  assessments,  122. 
when  made  by  city,  liability,  122. 

acceptance  of  work  by  city,  conclusive  as  against  property  owner,  123. 
personal  liability  of  property  owner,  123. 
the  prevailing  rule,  124. 

STATUTE  OF  LIMITATIONS— 
municipal  warrants,  224. 

STREETS  (see  ROADS  AND  STREETS)  . 

STREET  RAILWAYS  (see  ORDINANCES)  — 

power  of  corporation  to  grant  franchise,  76. 
regulation  of.  78,  156. 
conditions  imposed  on,  77. 


SURFACE  WATER— 

common-law  rule  in  respect  to,  352. 
the  civil-law  rule,  352. 
control  over  natural  water-ways,  353. 
discharge  of,  on  land  of  individual,  353. 
as  affected  by  change  of  grade,  359. 


412  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 
T. 

TAKING— 

what  constitutes  a,  105. 

TAXATION  (see  SPECIAL  ASSESSMENTS;  ILLEGAL  TAXES)  — 
power  of,  113. 

statutory  mode  of  collection  exclusive,  45. 
may  be  delegated  to  public  corporation,  24. 
exemption  from,  114. 

property  exempt  from,  liable  to  special  assessments,  121. 
for  public  purposes  only,  113. 
revocable,  113. 
special  assessment ;  form  of  taxation,  114. 

TELEGRAPH  AND  TELEPHONE  POLES— 
when  servitude  on  street,  75,  76. 

TERRITORIAL  LEGISLATURE— 
power  to  create  corporation,  20. 

TERRITORY  (see  BOUNDARIES). 

TEXT-BOOKS— 

may  be  prescribed  by  school  boards,  86. 
by  the  legislature,  87. 
by  school  board  commission,  87. 
use  of  Bible  as  a  text-book,  88. 

THEATERS— 
license  for,  56. 
policeman  at,  161. 

TITLE  TO  OFFICE— 
manner  of  trying,  204. 
by  certiorari,  204. 
by  quo  warranto,  204. 

TORTS,  LIABILITY  FOR  (see  NEGLIGENCE)— 
of  public  officers  (see  OFFICERS). 
governed  by  nature  of  power  or  duty,  309. 
distinction  between  state  and  corporate  powers,  310. 
when  exercising  discretionary  power,  310. 
when  duty  imposed  or  assumed,  311. 
liability  for  acts  of  agents,  311. 

rule  of  respondeat  superior,  312. 

officers  performing  duties  of  corporation,  312. 

acts  of  independent  boards,  312. 

acts  of  officers  under  control  of  boards,  313. 


INDEX.  413 


[REFERENCES  ARE  TO  PAGES.] 

TORTS,  LIABILITY   FOR— Continued, 
acts  of  a  contractor,  313. 
ultra  vires  torts,  no  liability  for,  314. 
construction  of  a  dain  without  authority,  315. 
acts  of  officers  under  void  ordinance,  316. 
acts  done  under  claim  of  authority,  316. 
licensing  of  nuisances,  316. 
ratification  of  ultra  vires  torts,  317. 
increase  of  liability  by  contract,  318. 
consequential  injuries,  359. 

TOWN  MEETING— 
character,  12. 
organization,  12. 
officers,  12. 
franchise,  12. 
history,  12,  n. 

TOWNS  (see  NEGLIGENCE). 

nature  of  New  England  towns,  11-12. 

TOWNSHIPS— 

outside  of  New  England,  13. 
history,  10-12. 
an  administrative  unit,  11. 
growth,  13. 

TRIBUNAL  (see  COUETS  ;  MUNICIPAL  COTTBTS). 
TROLLEY  CAR  SYSTEM,  74,  75. 

TRUSTEE— 

power  to  hold  property  as  trustee,  46. 

u. 

ULTRA  VIRES  (see  CONTRACTS;  TOBTS) — 
the  general  doctrine,  209. 
its  proper  scope,  209,  n. 
modification,  210. 
by  doctrine  of  estoppel,  210. 

when  contract  is  within  scope  of  general  power,  212. 
contract  in  part  ultra  vires,  213. 
modified  by  doctrine  of  implied  contract,  214. 
ultra  vires  torts,  314,  317. 

UNCONSTITUTIONAL  STATUTE— 

construction  of  dam  under  authority  of,  315. 

UNIFORMITY— 

of  legislation,  285. 

uniform  operation  of  laws,  286. 


414  INDEX. 

[REFERENCES  ARE  TO  PAGES.] 

UNIVERSITY— 

may  be  either  public  corporation  or  private,  2-3. 

V. 

VACATION  OF  STREETS— 
power  of  corporation,  79. 
rights  of  abutters,  79. 

VACCINATION— 

power  of  school  board  to  compel,  88. 

VETERANS— 

preference,  appointment  to  office,  180. 

VETO  (see  OEDINANCE) — 
of  ordinance,  137. 

w. 

WARRANTS  (see  ch.  XVII)— 
definition,  220. 

power  to  issue  warrants,  220. 
form  of,  221. 

not  negotiable  instruments,  221. 
presentment  and  demand,  222. 
duty  of  holder,  222. 
payable  out  of  particular  fund,  223. 
rights  of  indorsee,  223. 
same  as  those  of  original  holder,  223. 
payment  extinguishes  the  debt,  224. 
cancellation,  224. 
re-issued  warrant  void,  224. 
defense  of  ultra  vires,  224. 
authority  of  officer  issuing,  224. 
statute  of  limitations,  224. 
cannot  be  discounted,  221. 

WATER— 

may  be  stopped  for  non-payment  of  dues,  162. 

WATER-WAYS  (see  SURFACE  WATEBS). 

WATERWORKS— 

power  to  maintain,  84. 

WATER  AND  LIGHTING— 

power  to  light  the  streets,  83. 

manner  of  providing  water  and  lights,  83. 

power  to  regulate  franchise  companies,  83. 


INDEX.  415 


[REFERENCES  ARE  TO  PAGES.] 

WATER   AND   LIGHTING— Continued, 
regulation  of  rates,  83. 
power  to  own  plants,  84. 
right  to  supply  water  beyond  limits,  85. 
purchase  of  plant,  85. 
reservation  of  right  to  purchase  plant,  85: 
right  to  condemn  plant,  86. 
contracts  with  franchise  companies,  83,  93-95. 
power  of  corporation  to  fix  rates  in  contract,  92. 
to  bind  itself  not  to  establish  a  plant,  93. 

WHARVES  AND  FERRIES— 
regulation  of,  55. 
authority  to  maintain,  86. 
right  to  collect  toll,  86. 
nature  of  municipal  rights  in,  81,  86,  269. 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
LOS  ANGELES 


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